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LAW  OF  NOTICE 


AS  AFFECTING  CIVIL  RIGHTS  AND  REMEDIES. 


BY 


WILLIAM  P.  WADE. 


CHICAGO: 

CALLAGHAN  AND  COMPANY, 

1878.     • 


T 


Entered  accordinor  to  Act  of  Congress,  in  the  year  1878, 

By  Wm.  p.  Wade., 
In  the  office  ol'  the  Librarian  of  Congress,  in  Washington. 


Blakely  &  Brown,  Marder,  Luse  &  Co., 

Book  and  Newspaper  Printers,  Electr^typers  &  Stereotypers, 

155  &  157  Uearborn  Street.  139  &  141  Monroe  Street, 

Chicago.  Chicago. 


"^^^ 


h 


TO 

SEYMOUR  D.  THOMPSON,  ESQ., 

OF    THE    ST.    LOUIS   BAR. 

THIS  BOOK  IS  INSCRIBED  IN  ACKNOWLEDGMENT  OF  HIS 
YALITABLE  LABORS  AS  A 

LEGAL   JOURNALIST,   CONTRIBUTOR,    AND    AUTHOR, 

AS  A  TRIBUTE  TO  HIS  WORTH  AS  A  CITIZEN  AND  A  LAWYER, 

AND  AI;SO  AS  A  TOKEN  OP  THE  WARM  PERSONAL 

REGARD  ENTERTAINED  FOR 

HIM  BY 

THE  AUTHOR. 


U(c'\o^\ 


PREFACE. 


A  custom  has  grown  up  among  authors,  especially  new 
authors,  of  apologizing  to  the  members  of  the  profession,  for 
making  still  another  new  book.  This  portion  of  the  customary 
preface  will  be  omitted  here,  because,  in  the  first  place  there 
seems  no  one  to  whom  such  an  apology  is  due.  Those  who 
have  no  use  for  a  text  book  upon  the  subject  of  notice,  have 
no  right  to  resent  its  publication,  and  those  who  feel  the  want 
of  it  will  require  no  excuse  for  an  attempt  to  supply  that  want. 
Their  criticism  will  only  be  directed  to  the  manner  of  execut. 
ing  the  work.  In  the  second  place,  the  writer  had  experienced 
no  inconsiderable  annoyance  and  vexation  in  his  own  practice, 
which  might  have  been  avoided  had  there  been  any  work  at  all 
upon  the  subject,  and  commenced  the  collection  of  materials 
for  the  following  pages  under  the  belief  that  such  a  book  was 
necessary,  when  there  was  no  prospect  of  the  want  being  sup- 
plied by  any  one  else.  Having  undertaken  the  task,  in- 
fluenced by  this  conviction,  apologies  for  doing  so  can  hardly 
be  in  order.  For  what  the  book  lacks,  either  in  thoroughness} 
or  skillfulness  of  treatment,  or  in  conyenience  of  arrangement, 
the  author  is  profoundly  regretful,  and  awaits  the  criticism 
and  candid  suggestions  of  his  readers,  with  an  abiding  faith 
that  they  will  be  in  the  main  just  and  fair.  But  he  would  ask 
them  to  consider,  particularly,  with  respect  to  the  arrange- 
ment of  topics,  that  he  was  without  a  model  or  guide,  which 
contained  a  single  suggestion  in  this  direction.  Those  upon 
whom  he  felt  at  liberty  to  call  for  advice  were  either  too  busy 
to  consider  the  matter  witli  care,  or  ackno  wledged  their  ina- 
bility to  make  suggestions  which  were  even  satisfactory  to 
themselves.     Some  of  the  difficulties  in   the  way  of  an  easy 


VI  PREFACE. 


solution  of  this  problem  were  made  apparent  by  the  oft-re- 
peated interrogatoiy  of  those  to  whom  the  title  of  the  proposed 
book  was  explained — "Notice  of  What  ?"  In  arranging  the 
different  chapters  and  subdivisions,  the  intention  has  been 
to  group  the  topics  according  to  their  relations  to  each 
other,  and  to  present  all  the  law  upon  each  without  unnecessary 
repetition.  That  these  purposes  have  been  measurably  thwarted 
will  not  be  a  matter  of  surprise  to  those  who  have  critically 
examined  many  law  books.  In  endeavoring  to  carry  out  this 
plan,  it  was  found  necessary  to  travel  over  a  great  deal  of 
ground  and  accumulate  no  inconsiderable  portion  of  mat. 
ter,  without  regard  to  the  order  of  arrangement,  and  when 
arranged,  a  great  deal  of  what  had  been  written  had  to  be  re- 
written to  make  it  conform  to  the  relative  positions  of  the 
chapters.  After  all,  the  writer  feels  bound  to  confess  that  the 
arrangement  finally  determined  upon,  is  to  some  extent  arbi- 
trary. Those  who  exainine  the  work  will  doubtless  find  many 
other  features  where  improvements  may  be  suggested.  By 
enlarging  the  volume,  useful  matter  might  be  added,  both  to  the 
text  and  to  the  notes.  But  laboring  under  the  impression  that 
there  was  a  limit  beyond  which  such  a  work  could  not  with 
propriety  be  extended,  many  merely  cumulative  authorities, 
and  those  illustrating  points  of  doubtful  utility,  have  been 
rejected.  If  the  most  important,  and  in  fact,  all  the  more  im- 
portant, cases  have  not  been  cited,  it  is  for  the  reason  that  the 
author  was  unable  to  find  them.  If  any  have  found  their  way 
into  the  table  of  cases,  which  have  not  been  carefully  examined 
and  considered  in  connection  with  the  doctrine  laid  down  in 
the  text  which  they  are  cited  to  illustrate  or  confirm,  the  num- 
ber is  very  small  indeed,  and  their  presence  is  owing  to  inad- 
vertence, and  not  to  a  design  on  the  part  of  the  writer  to 
impose  upon  the  profession  doubtful  authority,  for  the  mere 
purpose  of  swelling  the  list  and  making  a  show  of  great 
industry. 

There  has  been  an  endeavor  in  the  following  pages  to  pre- 
sent as  much  of  the  law  bearing  upon  the  subject  of  notice  as 
could  be  compressed  within  what  was  considered,  in  the  light 


PREFACE.  Vn 

of  current  criticism,  a  proper  space,  consistent  with  a  fair  and 
reasonable  degree  of  comment  and  illustration.  A  glance  at 
the  table  of  contents  will  show  the  diiferent  branches  of  the 
law  into  which  the  doctrine  has  found  its  way,  and  exerted  a 
distinct  influence  in  determining  the  conflicting  rights  of  par- 
ties litigant.  No  department  of  jurisprudence  where  notice 
has  been  considered  essential,  either  to  bind  a  party  or  release 
him  from  obligation,  has  been  purposely  omitted. 

In  preparing  the  book  for  publication,  no  model  has  been 
followed,  for  the  reason  that  there  was  no  model  to  follow,  and 
not  because  the  author  desired  to  make  innovations.  In  one 
respect,  however,  there  has  been  an  attempt  to  avoid  what  in 
some  law  books  seems,  to  a  certain  extent,  a  matter  of  neces- 
sity, and  in  others  a  most  offensive  vice — that  is  the  inser- 
tion of  all  the  explanatory  portion  of  the  matter  in  the  notes. 
They  leave  nothing  but  the  dry  husks  of  the  subject  in  the 
text,  making  up  for  the  baldness  of  treatment  in  the  author's 
original  composition,  by  profuse  quotation  in  the  notes,  so 
extended  and  discursive  as  to  weary  the  eye  and  puzzle  the 
understanding  of  the  reader.  The  peculiar  nature  of  a  sub- 
ject may  be  such  as  to  render  this  sort  of  annotation  neces- 
sary ;  but  where  the  writer  of  this  book  has  varied  from 
the  practice  of  incorporating  in  the  text  all  that  seemed 
essential,  leaving  nothing  for  the  notes  but  the  citation  of 
cases,  it  was  because  the  matter  had  been  overlooked,  or  was 
suggested  so  late  as  to  render  its  insertion,  according  to  the 
original  plan,  impracticable  without  more  labor  than  the  im- 
portance of  this  feature  of  the  work  would  seem  to  warrant 
Every  effort  has  been  made  to  eliminate  all  errors  and  mis- 
takes, and  to  supply  all  omissions.  The  book  is  offered,  not 
in  the  belief  that  the  task  undertaken  has  been  perfectly 
executed,  but  in  the  conviction  that  it  contains  nothing  but 
good  law,  and  is  so  arranged,  and  provided  with  facilities  for 
reference,  as  to  be  of  considerable  use  to  an  overworked  pro- 
fession. 

W.  P.  W, 

St.  Louis,  May  13,  1878. 


CONTENTS. 


CHAPTER  I. 

THE    DIFFERENT    KINDS    OF    NOTICE, 

PA.aK. 

I.     Actual  Notice,  .  .  -  .  1 

II.     Constructive  iSTotice,  -  -  .  20 

CHAPTER  II. 

NOTICE    TO    PURCHASERS. 

I.     Difference  in  Effect  of  N"otice  to  Purchasers  of 

Different  kinds  of  Property  or  Securities,  25 

II.     Registration  of  Instruments,         -             -  49 

III.  Notice  by  Possession,     -          -             -             -  116 

IV.  Notice  from  Title  Papers,  -           .             -  133 
Y.     Lis  Pendens,     -            -             -             -             -  146 

CHAPTER  III. 

NOTICE    BY    WHICH    (JERTAIN    LIABILITIES   ARE    CREATED. 

I.  Notice  of  Acceptance  of  Proposals,     -  -  161 

II.  Notice  of  Guaranty,  ...  165 

III.  Notice  of  Assignment,  ...  187 

IV.  Notice  to  Carriers  and  other  Bailees,  -  196 


Jt  CONTENTS. 

CHAPTER  IV. 

NOTICE   BY    WHICH    LIABILITY    IS    EXTINGUISHED    OR    ilODIFIED. 

Pagk. 

I.     Dissolution  of  Partnership,     -             -             -  210 

II.     Notice  by  Carriers  Limiting  their  Liability,  -  235 

III.     Landlord  and  Tenant,     .          -             -             -  261 

CHAPTER  V. 

PRINCIPAL    AND    AGENT. 

I.     Notice  of  Agency,       .             -             -            -  291 

II.     Kotice  to  an  Agent,         -             -            -  304 

III.     Notice  by  an  Agent,  -            -            -            -  319 

CHAPTER  YI. 

NOTICE    OF   DISHONOR    OF   COMMERCIAL    PAPER. 

I.     By  whom  Given,     .            .             -             .  323 

II.     To  whom  Given,            .             .             .             .  334 

III.  Time  of  Giving  Notice,       -             -             -  350 

IV.  Manner  and  Mode,         -            -            -            -  370 
V.     Waiver  and  Excuse,             .             _             .  410 

CHAPTER  VIL 

PUBLICATION    OF   NOTICES. 

I.     Original  Process,     -             .             -             -  449 

II.     Judicial  Sales,  -----  467 

III.  Non-Judicial  Involuntary  Sales,     -             -  474 

IV.  Miscellaneous  Proceedings,        .            -            -  479 


CHAPTER  VIII. 

PKACTICK    AND    PLEADING. 


I. 

Original  Process,         -             -             -             - 

Pagb. 

485 

ir. 

Notice  of  Trial,    -             -             -             - 

490 

III. 

Notice   of    Motions,   and  other   Interlocutory 

Proceedings,        -             _             .             . 

504 

lY. 

Notice  of  Appeal,  -           -             -             - 

518 

V. 

Notice  of  Taking  Depositions, 

518 

VI. 

Notice  to  Produce  Books  and  Papers, 

■  535 

VII. 

Service,             _            _            .             .            . 

552 

vrii. 

The  Return,          .            .             .            .             , 

•  579 

rx. 

Pleading,         -             .            -            -            . 

592 

INDEX  TO  CASES  CITED. 


A. 

Section. 

Abralims  o.  Stokes,  1209 

Acer  V.  Westcott,  329 

Adams  v.  Darby,  1009 

V.  Jones,  407 

1).  Peck  1242 

V.  Wright,      788,  789,  856,  859 

Adams  Ex.  Co.,  v.  Guthrie,  555 

Adriance  v.  Hafkemeyer,  60( 

V.  McCafferty,  10  )^ 

Agra  Bank,  v.  Barry,  109 

Aguirre  v.  Parmelee,  4(54 

Aicardi  v.  Strang,  1253 

Aickle's  case,  1262 

Aiken  v.  Thompson,  481 

Airey  v.  Pearson,  937 

Alderson  v.  Ames,  113,  254 

V.  Pope,  525 

Alexander  v.  Alexandei",  1232 

V.  Quigley's  Ex'rs,       1143 

AUday  v.  Great  West.  Railw.  Co.,  560 

Allen  V.  Avery,  815 

V.  Edmundson,  1397 

V.  Hill,  1324 

V.  Hubert,  422 

V.  Jaquish,  590 

V.  Moss,  127,  211 

V.  Ogden,  663 

V.  Pike,  388 

V.  Rightmere,  894, 396 

Alvis  V.  Morrison,  157 

Alvord  V.  Collin,  1109 

Amidown  v.  Osgood,         48G,  515,  522 


Section. 

Andrews  o.  Boyd,  943 

L\  Kneeland,  652 

V.  O.  &  M.  R.  R.  Co.,       1132 

d).  Pond,  94 

Anketel  v.  Converse,  256 

Anon,  1357 

Apperson  v.  Bynum,  983 

V.  Union  Bank,  987 

Arbouin  «.  Anderson,  80 

Argenti  v.  San  Francisco,  1123 

Arnold  v.  Dinsmore,  1091 

V.  Dresser,  957 

V.  Nye,  1235 

Ashmore  v.  Steam  Tow  &  Trans. 

Co.,  558 

Astor  V.  Wells,  193,  672 

Atkinson  v.  Taylor,  1159 

iVtlautic  Tel.  Co.  v.  New  Orleans 

&  C.  R.  R.  Co.,  1308 

Atwell  V.  Miller,  1287 

Atwood  V.  Fricot,  1234, 1351 

V.  Munnings,  664 

V.  The  Reliance  Co.,  541 

Aubuchon  v.  Bender,  826 

Auger,  Steel,  &c.  Co.  ».  Whittier,  1257 


Amoskeag  Bank  v.  Moore,  1023 

Amsbaugii  v.  Gearhart,  422 

Amyr  v.  Sheldon,  822 

Anclerson  v.  Baughman,  1331 

V.  Brown,  1152 

V.  Prindle,  611,  613 

V.  VanAllen,  440 

Anderson  Bridge  Co.  v.  Applegate, 

1257 


Ault  V.  Gassaway, 
:\.verill  V.  Hedge, 
Avery  v.  Woodbeck, 
Ayer  v.  Ilutchins, 
Ayers  v.  Duprey, 
Aymer  v.  Beers, 
Ayrault  v.  Chamberlin, 

B. 


374 
883 
1213 
90 
238 
993 
493 


378 


B.  &  M.  L.  R'y  Co.  v.  Unity, 

Habcock  v.  Bryant,    389,  401,  413,  425 

Baclielor-y.  Bachelor,  1103 

backhouse  v.  Harrison,  80,  83 

Backus  y.  Shipherd,  936 

Bacon  v.  Gardner,  348 

Bagges,  ex  parte,  676 


XIV 


INDEX    TO    CASES    CITED. 


558 


Skction. 

Bailey  v.  Clark,  525 

V.  McGinuiss,  348 

V.  Myrick,  1065 

V.  Richardson,  273 

V.  White,  273 

».  Wright,  1243,1321 

Baker  v.  Barney,  671 

V.  Brinson, 

V.  Hall, 

V.  Mather, 

V.  Wales, 

Baklney  v.  Ritchie, 

Baldwin  v.  Cassella, 

■0.  Love, 

V.  Richardson, 

Ball  v.  Greaud, 

Ballard  v.  Burgett, 

Ballitt  V.  Musgrave, 

Baltimore  v.  Bouldin, 

Bancroft  v.  Hall, 

Bander  v.  Covill, 

Bank  v.  Ammou. 

«.  Cutler, 

V.  Dill, 

V.  Grimshaw, 

t'.  King,  821 

V.  Waples,  939 

of  Alexandria  v.  Swam, 

805,  807,  822 
America  t\  McNeil,  675 

Augusta  V.  Earl,      1302,  1306 
Brooklyn  v.  McChesney, 

491,  508 
Cape  Fear  v.  Seawell,  714 
Chenango  t.  Root,  759 

Columbia  v.  Lawrence, 

877,  883 
Commonwealth  v.  Mudgett, 

509 
Geneva  v.  Howlett,  883 

Manchester  v.  Slason,        901 
New  Milford  v.  Town  of 

New  Milford,  675 

Niagara  i\  McCracken,     431 
Pittsburgh.  Neal,  80 

Seaford  v.  Connoway,         999 
South  Carolina  v.  Meyers, 

943 
State  of  Mo.  v.  Vaughn 

697,  714 
United  States  v.  Beirne,    757 
V.  Davis,  33, 

672.  682,  690 

V.  Gnddard,  709 

V.  Hatch,      857 

V.  Leathers,  957 

TJtica  V.  Bender,  921 


Utica  V.  Davidson, 
V.  Mersereau, 
V.  Phillips, 
V.  Smith, 


Skction  . 
922 
216 
922 

715,  929 


West  Tennessee  v.  Davis,  865 

Banks  «.  Banks,  1342 

Barbaroux  v.  Waters,  997 

Barclay',  Ux  parte,  702 

72 1                V.  Weaver,  939 

SlOIBardsky  c.  Hines,  1032,  1053 

13581  Bargate  v.  Shortridge,  676 

1272  Barker  v.  Parker,  939 

695              V.  Sc  udder,  430 

369  Barlow  v.  Wainwright,  578,  586 

990  Barnard  v.  Campau,  149 

933                 r.  Wheeler,  665 

73  Barnes  ».  McClinton,  7, 80,  81,  250, 685 

1138j             V.  Reynolds,  767 

1127 {Barney  v.  Currier,  59 

823,  889,              V.  Little,  166 

1177, 1178j              V.  McCarty,  167 

176|Barnhart  v.  Greenshields,  281 

1397|Barradaile  v.  Lowe,  959 

954  Barret  v.  Evans,  876,  915 

711!BaiTettt'.  Charleston  Bank,  943 

V.  Pritchard,  72,  75 

V.  Smith,  1194 

Barry  v.  Morse,  939 

Bartlett  c.  Glasscock,  30 

V.  Hawlev,  794 

V.  Isbell,  716 

V.  Pearson,  436,442 

V.  Robinson,  928 

Barton  v.  Baker,  732,  943 

V.  Kane,  1287 

Bashford  v.  Shaw,  420 

Baskeville  v.  Harris,  957 

Bassett  v.  Salisbury  Co.,  1280 

Batchelor  v.  Priest,  697,  706 

Batemau  v.  Joseph,  990 

Bates  V.  Norcross,  205,  207,  223 

Battle  V.  Eddy.  1152 

Batteet  ®.  Hartley,  471 

Batty  V.  McCundie,  525 

Baxter  v.  Clark,  535 

Bay  V.  Coddington,  666 

Bay  State  Bank  v.  Kiley,  ^  609 

Bazemore  v.  Davis,  207,  310 

Beal  V.  Gordon,  277 

Beals«.  Allen,  652 

V.  Peck,  765 

Beau  V.  Green,  547 

V.  Simpson,  440 

Beard  i:  Beard,  1083,  1142 

V.  Kirk,  671 

Bear  River  &  Auburn,  «!bc.,  Co., 

V.  Boles,  1198 


INDEX    TO    CASES    CITED. 


XV 


Sbction. 

Beasley  v.  Downey  1241 

Beatie  v.  Butler,  375,  282 

Bebee  v.  Brooks,  738 

V.  Moore,  1388 

Beck  «.  Evans,  560 

Beckman  v.  Shouse,  541 

Beckwith  v.  Smith,  805,  927 

Bedford  v.  McEllierron,  581,  588 

Beebe  v.  Dudley,  390,  420 

Beeknian  v.  Hale,  393 

Begley  v.  Chose,  1212 

Bell  «..  Fleming,  182 

D.  Hagerstown  Bank,  873 

V.  Hall,  983 

V.  Kellor,  407 

V.  Moss,  457,  463,  480 

V.  State  Bank,  876 

v.  Twilight,  322 

Bellamy  v.  Sabine,  338,  350 

Bellas^.  Lloyd,  318 

V.  McCarty,  113 

Bellgerry  v.  Branch,  983 

Belmont  Branch  Bank  v.  Hodge,     80 

Bendy  v.  Boyce,  1152,  1365 

Bennett  v.  Hetherington,  1073 

V.  Williams,  3481 

Bensley  v.  Mountain  Lake  Wa-         1 

ter  Co.,  374; 

Berresford  v.  Geddes,  1170j 

Berkshire  Bank  ®.  Jones,  936 

Berridge  v.  Fitzgerald,  867 

Berry  v.  Robinson,  738 

V.  Southern  Bank  of  Ky.,      983 

Best  V.  Osborn,  1274! 

Beymer  t).  Bonsall,  671 

Bickerdike  v.  Bollman,  1001 

Bickford  v.  Gibbs,  427 

Bierce  v.  Red  Blutf  Hotel  Co.,        077 

B'lbieij.  Lumley,  975 

Biles  «.  Stanton,  1161 

Billington  v.  Welsh,  293 

Bingham  v.  Rogers,  541,  558 

Binks-y.  Trippet,  393 

Birbeck  v.  Tucker,  1273 

Birch  V.  Ellames,  56 

Bird  V.  Brown,  461,  464,  480 

V.  Le  Blanc,  935 

Birdsall  v.  Russell,  40 

Birkett  v.  Willau,  558 

Birnie  v.  Main,  203 

Bishop  V.  Dexter,  738 

V.  Schneider,  133 

Bishop  of  Winchester  v.  Paine, 


Blackhan  v.  Doren,  1004,  1015 

Blair  v.  Compton,  1097 

V.  Ward,  203 

Blaisdell  v.  Stevens,  10,  31 

Blake  v.  Graham,  205,  233 

Blanchard  v.  Page,  473 

V.  Ware,  339 

Blankenship  v.  Rogers,  1006 

Blatchley  v.  Csborn,  17,  .53 

Bleekcry   Hyde,  394 

Blum  V.  Bidwell,  957 

Blumeuburg  v-  Myers,  585 
Blumcnthal  c.  Brainard,  568,  674,  688 
B.  &  M.  L.  R.  R.  Co.,  V.  Unity,      378 


Boardman  «.  Gore, 
Boatright  v.  Porter, 
Bobb  V.  Woodward, 
Bodenham  v,  Bennett, 
Boehm  v.  Combe, 
Bogy  V.  Keil, 
Boggs  V.  Anderson, 

V.  Black, 

V.  Varner, 
Bohn  V.  Devlin, 


525 

1269 

1031,  1056 

558,  560 

532 

1017 

377 

649 

46,263,278,315,316 

1229 


Bohr  v.  Steamboat  Baton  Rouge,  1242 
Bolard  v.  Mason,  '      1362 

Bolton  V.  Lane.  &  York  R'y  Co.,     466 


Bixby  V.  Smith, 

V.  Warden, 
Blackman  »  Leonard, 


Bond  V.  Farnham, 
V.  Wilson, 
v.  Whitfield, 
Bondurant  v.  Everett, 
Bonner  v.  Ware, 
Boot  V.  Franklin, 
Borden  v.  State, 
Bossard  v.  White, 
Bostvvick  V.  Powers, 
liotsford  V.  O'Connor, 
Bovey  v.  Smith, 
Bowling  V.  Arthur, 

V.  Harrison, 
Bowman  v.  Lee, 

v.  Wettig, 
Boyd  V.  City  Savings  Bank 
V.  Cleveland, 
V.  IMcCann, 
«.  Orton, 
V.  Schlesinger, 
Boynton  v.  Bodwell, 

V.    Clinton  and 
Insurance  Co., 
Brable  v.  Hollywell, 
Bracken  v.  Miller, 
Bradford  v.  Corey, 
Bradley  v.  Covel, 
V.  Davis 
V.  McDaniels, 


344,  346 
1038 
1213 
794lBrahn  v.  Jersey  C'y  Forge  Co.  619, 697 


732,  943 

1379 

1335 

876 

311 

1396 

1160 

131 

168 

1367 

63 

847,  848 

844,  847,  875 

231 

1260 

764,  926 

941 

504 

764 

133 

631,  647 

Essex 

447 

1387 

672,  688 

1025 

591 

839,  836 

343 


INDEX    TO    CASES    CITED. 


SZCTION. 

710 

1036 

738 

1272 

6G8 

796,  824 

167 

V.  Hillhouse,  394,  418,  956,  96^ 


Brailstbrd  ».  Williams, 
Braley  v.  Seaman, 
Branch  Banli  v.  Gafney, 
Brandt  c.  Klein, 
Bray  v.  Gunn, 

V.  Hadwen, 
Breed  v.  Conley, 


Brewer  v.  Springfield, 

1079 

Bridges  v.  Arnold, 

1383 

Briggs  V.  Green, 

12-21 

V.  Snegan, 

1159, 1161 

Bright's  Trust,  Re., 

35 

Bright  v.  Young, 

1280 

Brighton  Market  Bank  v.  Philbrick, 

990 

Brindley  v.  Barr, 

846,  873 

Brisbau  v.  Boyd, 

383 

Bristol  V.  Sprague, 

5U) 

Britton's  Appeal, 

227,  238 

Brooke  v.  Picwick, 

544 

Brooklyn  Trust  Co.  i\  Bui 

mer,      1352 

Brooks  V.  Blaney, 

838 

Bronson  v.  Coffin, 

662 

Bronson  v.  Kensey, 

1257 

Brotherton  v.  Hatt, 

687,  690 

u.  Livingston, 

183 

Broughton  y.  Journeay, 

1107 

Brower  v.  Brooks, 

1192 

Brown  v.  Brooks, 

421 

V.  Clement, 

1251 

V.  Dean, 

187 

v.  Eastern  R.  R.  Co.,           548 

V.  Ford, 

1244 

%\  Furguson, 

797 

V.  Grand  Trunk  R. 

R.Co.,  555 

■0.  Leonard,            483,  486,  524 

«.  Limt, 

136 

«.  Maflfey, 

1004,  1010 

V.  Patton, 

671 

v.  Simpson, 

128 

V.  State, 

1195,  1203 

V.  Turner, 

•      754 

V.  Volkenning, 

288,  290 

Browufield  v.  Dyer, 

1343,  1345 

Browning  v.  Kinnear, 

990 

D.  Paige, 

1179 

Bruce  v.  Cloutman, 

1138 

Bruen  u.  Bruen, 

1201 

Brush  ■».  Scribner, 

80 

f}.  Ware, 

311 

Brushaben  v.  Stigemann, 

1168 

Bryant  v.  Booze, 

52.  55,  65 

V.  Merchant's  Bank  of  Ky-, 

936 

V.  Moore, 

658 

Brydolfr.  Wolf, 

1838 

Brydon  v.  Campbell,  140,  149 

Bryne  «.  Roberts,  1041 

Buchanan  v.  Curry,  748 

V.  Marshall,  936 

Buckley  v,  Furniss,  464 

V.  Garrett,  448 

V.  Lewis,  1180 

Buckman  v.  Levi,  153,  454 

Buckmasterw.  Xeedham,  2iiO 

Buckner  v.  Jones,  88,  90 

Bulfalo  Steam  Engine  Works  c.  Sun 

Mutual  Ins.  Co.,  •      446 

Bundy  «.  Hyde,  1233 

Burbank  v.  Dyer,  583 

Burbridge  v.  Manners,  783 

Burdett  i\  Lewis,  1337 

Burgess  v.  Vreeland,  805 

Burgh  V.  Legge,  1397 

Burkart  v.  Bucher,  313 

Burk  V.  Barnard,  1159 

Burke  t'.  McKay,  697,  715 

Burmester  v.  Barron,  926 

Burnel  t\  Wood,  1390 

Burnett  v.  Lynch,  1278 

Buruham  v.  Chandler,  120 

V.  Gallentine,  420,  422 

I'.  Webster,  936 

Buron  v.  Denman,  669 

Burrel  v.  North,  453,  455,  532 

Burrough  v.  Moss,  728 

Burrows  v.  Hannegan,  891 

Burrus  v.  Boulhac,  325 

Burt  V.  Cassety,  273 

Burton  v.  Wolfe.  1097 

Burwell  v.  Mandeville,  496 

V.  Springfield,  528 

Bush  V.  Bush,  1158 

V.  Golden,  114 

V.  Lathrop,  436 

Bushell  V.  Bushell,  105,  107 

Bussard  v.  Levering,  781 

Bussey  v.  Leavitt,  1108,  1114 

Butcher  v.  Yocum,  28 

Butler  v.  Duval,  709,  735 

V.  Heane,  540 

■«.  Mitchell,  1198 

v.  Stevens,  7,  277 

Butts  V.  Norcross,  207 

Byrne  v.  Roberts,  1041 

c. 

Cabeen  v.  Campbell, 
Cabot  Bank  v.  Russell, 
V.  Warner, 
Cahoon  v.  Morgan, 
Calahan  v.  Babcock, 


466 
903 
786,  830,  843 
438 
464 


INDEX    TO    CASKS    CITED. 


XVll 


Section. 
Calais  Steamboat  Co.  v.  Van  Pelt, 

651,  653 
Calder  v.  Chapman,  215 

Calderwood  v.  Brooks,  1202 

Caldwell  v.  Head,  219,  222 

V.  McVicar,  1253 

Calvin  v.  Bowman,  168 

Camb.  &  Amb.  Railw.  v.  Baldaiif, 

545,  558 
v.  Belknap, 

552,  553 

Cambridge  Valley  B'k  v.  Delano,    17 

Camp  V.  Bates,  1397 

Campbell  v.  Baker,  422 

V.  Brackenridge,  296 

«.  Hastings,  657 

«.  Pettengill,  1004 

Caney  «.  Patton,  671 

V.  Silverthorn,  1202,  1329 

Canfield  v.  Hard,  496 

Carey  v.  Butler,  1159 

Carland  v.  Cunningham,      1257,  1258 

Carlisle  B.Tuttle,  1236 

Carlton  v.  Patterson,  1247 

Carmena  v.  Bank  of  La.,  794 

Carmichael  v.  Greer,  530 

Carpenter  v.  Reynolds,  934 

■».  Spooner,  1358 

■v.  United  States,  593 

Carpentier  v.  Thurston,  1329 

Carr  v.  Callagan,  355 

Carrington  o.  Brent,  354 

V.  Stimson,  1246 

Carter  v.  Burlejr,  795,  805,  815 

■0.  Campion,  138 

V,  Daizy,  1375 

«.  Flower,  1017 

V.  Mills,  357 

Cartmell's  Case,  676 

Case  V.  Hannahs,  1443 

Cass  v.  Bellows,  1102 

Cass  Co.  V.  Green,  88,  93 

Cassiday  v.  McKenzie,  671 

Cater  t>.  McDaniel,  1222 

Cates  «.  Winter,  1257,  1290 

Catskill  Bank -e.  Stall,  920 

Cayuga  Bank  v.  Dill,  954 

Cayuga  County  Bank  v^  Bennett,    762 

V.  Hunt,        788 

Center  v.  P.  &  M.  Bank,  10 

Central  Bank  v.  Allen,  1281 

Central  Bank  «.  Davis,  955 

Central  Savings  B'k  v.  Shine,  39!) 

Chadwick  v.  Turner,  108,  217 

Chaffee  v.  M.  C.  &  N.  W.  It.  K. 

Co.,  956 

Chamberlain  v.  Dow,  490 

2* 


Chamberlain  c.  Paris,  1084 

0.  Donahue,  604 

Chambers  v.  King  Wrought  Iron 

Bridge  Co.,  1310 

Chandler  v.  Mason,  1028 

-0.  Spear,  1117 

Chapcott  V.  Curlewis,  915 

Chapman  v.  Annett,  967 

V.  Keane,  697,  703,  706 

v.  Lipscombe,  990 

Chase  v.  Hogan,  1330 

V.  Sycamore  &  C.  P.  R.  R. 

Co.  1387 

Chatham  v.  Bradford,  165 

Chaudron  v.  Magee,  348 

Cheeseborough  v.  Millard,  203 

Cherry  «.  Baker,  1251 

Cheshire  o.  Taylor,  956 

Chesterman  «.  Gardner,  273 

Chicago  V.  Witt,  210 

Chicago  «fc  Alton  R.  R.  Co.  «.  Scott, 

566,  572 
Chicago  &  R.  I.  R.  R.  Co.  u.War- 

ren,  574 

Chicago  &  R.  I.  &  P.  R.  R.  Co.  v. 

Kennedy,  30 

Chick  V.  Pillsbury,    794,  805,  810,  822 

Chickering  v.  Failes,  1354 

v.  Fowler,  563 

Childs  0.  Nelson,  383 

Chittendon  v.  Hobbs,    1343,  1346,  1362 

Choteau  o.  Jones,  19  5 

Christmas  v.  Mitchell,  335 

Christy  v.  Home,  1281 

Church  V.  Barlow,  715 

Cincinnati  v.  Bickett,  1066 

City  Bank  v.  Cutter,  1397 

City  Counsel  v.  Page,  7 

City  Paying  for  Opening  Streets,  1123 

Clafflin  V.  Lenheim,  671 

Claiborne  v.  Holmes,  225,  303 

Glamorgan  v.  Lane,  254,  255 

Clapp  V.  Rogers,  512 

Claridge  v.  Dalton,  1008 

Clark  V.  Adams,  1355,  1395 

V.  Bosworth,  277 

V.  Faxton,  552 

V.  Fuller,  679 

0.  Helms,  348 

V.  Keliher,  640 

V.  Lichtenherg,  1320 

■0.  Remington,  \    389 

V.  Trindle,  246 

V.  Wells,  72,  74 

("larke  «.  Crego,  598 

i).  Morey,  752 

■c  Sharpe,  926 


XVI 11 


IJ^DKX    TO    CASES    CITED. 


Sbction. 
Clarkson  v.  Morgan,  o64 

Claudet  r.  Prince,  1178 

Clay  V.  Edgcrton,  420,  432 

V.  Willau.  542 

Claybrook  -v.  Wade,  108 

Claypole  v.  Houston,  1035 

Clayton  v.  Blakey,  586 

V.  Hunt,  539 

Clegg  V.  Cotton,  946,  947 

Clement  v.  Brooks,  1229 

Clerk's  Savings  B'k  v.  Thomas, 

88,  662,  682 
Clevinger  v.  Hill,  348,  357 

Clifton  ?).  United  States,  1280 

Clode  V.  Bayley,  717,  735 

Clodfelter  v.  Cox,  433,  435,  436 

Clough  V.  HoflFmau,  1387 

Cobb  i\  Stokes,  581,  595 

V.  Wood,  1138 

Cobden  v.  Bolton,  549 

Coble  V.  Nonemaker,  50 

Cochran  v.  Bird,  1211 

Cody  V.  Hough,  1286 

Coffee  V.  Gates,  1297,  136.^ 

Coffin  V.  Lunt,  585,  607 

Cole».  Allen,  1353 

V.  Goodwin,        542,  543,  552,  558 
V.  Wintercost.  1397 

Coleman  v.  Carpenter,  781,  783 

Coleman's  Appeal,  1315 

Colgin  V.  State  Bank,  1193 

ColHng  V.  Treweek,  1264 

Collins  V.  Canty,  648 

Col  man  v.  Watson,  49 

Colomer  v.  Morgan,  190 

Colt  V.  Barnard,  738,  739 

V.  Miller,  1397 

c.  Root,  1401 

Columbet  v.  Pacheco,  1215 

Colville,  I?i  re,  45(i 

Comer  v.  Jackson,  1359 

Commercial  Bank  e.  Clark,  968 

Commercial  Bank  of  Rochester 

V.  Colt,  439 

V.  Cunningham,  272 

v.  Gove,    '  864 

V.  Hughes,      732,  943,  1003 

V.  Strong,  8(16 

V.  l^orton,  653 

Commonwealth  v.  Emery  1257 

V.  Essinger.  1262 

V.  Goldstein,  1261 

V.  Intoxicating 

Liquors,      "       1175 

u.  Rodes,  121 

Comstock  V.  Farnum,  431 

Cone  V.  Baldwin,  8 


Skction. 
Cornelius  v.  Partain,  1241 

Congar  v.  C.  &  N.  W.  R.  R.  Co.,    674 
Congdon  v.  Anderson,  1233 

Conig  V.  Bayard,  711 

Conn  ■».  Penn,  748 

Connecticut  River  Bank  v.  French, 

527 
Connersville,  Pres't  &  C.  of,  v. 

Woodleigh,  1254 

Converse  v.  Warren,  1348 

Cook  V.  Farreu,  1031 

Cook's  Lessee  v.  Kell,  118 

Cook  v.  Transwell,  1275 

Coolidge  V.  Charter  Oak  Life  Ins. 

Co.,  673 

Cooper  V.  Smith,  1084,  1137 

Copeland  v.  Directors  of  Mining 

Co..  1138 

Copperthwaite  v.  SheflSeld,  714 

Corbitt  V.  Clenny,  310 

Corby  v.  Butler,  87 

Corn  V.  Sims,  267 

Cornelius  v.  Partain,  1241 

Cornoy  v.  Da  Costa,  946 

Corp  V.  McComb,  781 

Corwin  v.  Merritt,  1075,  1130 

Coiy  V.  Scott.  1004 

Coster  V.  Thomason.  752 

County  of  Greene  v.  Bledsoe,  1226, 1253 
Coveny  v.  Hale,  1190,  1201 

Cox  V.  Mathews,  1139 

V.  Milner,  7,  264 

Crabb  v.  Atwood,  1075 

Craft  V.  Isham,  390,  418,  419 

Craft's  Appeal,  90,91 

Craig  V.  Hawkins,  1138 

Cram  v.  Sherburne,  956 

C'-awford  v.  MUligan,  820 

Credland  v.  Potter,  110 

Cregler  v.  Durham,  495 

Cremer  v.  Hieginson,       389,  401,  5-29 
Crittenden  v  Woodrufi,  1228 

Crocker  v.  Crocker,  67,  68 

V.  Dunkin,  1159 

V.  Gctchell,  706 

V.  Gilbert,  1401 

V.  Gullifer,  72 

Crocket  v.  Maguire,         205,  207,  213 
Crofton  V.  Ormsby,  52,  279 

Crofut  V.  Wood,  209 

Crook  V.  Jadis,  80,  83 

Crooker  v.  Appleton,  1254 

Cross  V.  Bell,  1280 

Crowell  V.  Davis,  1 138 

V.  Galloway,  1366 

Crowther  w.  Rowlandson,  1201 

Culver  V.  Felt,  1169 


INDEX    TO    OASES    CITED. 


XIX 


Skction. 

Cunningham  v.  Buckingham,        273 
V.  Southern  Ex.  Co., 

1307 

Cupples  V.  Whelan,  6C!) 

Currens  v.  Hart,  27 

Currier  v-  Baker,  632 

Curry  v.  Bank  of  Mobile, ,  781 

Curtis  V.  Leavitt,  076 

V.  Lyman,  165,  172 

V.  Mundy,  7,  9,  240,  27o 

V.  State  B'k,  852,  1307 

Cushlng  V.  Ayer,  9^ 

V.  Hiircl,  236 

D. 

Dabney  v.  Stidger,  755 

Daly  V.  Slatter,  S17 

Dambmann  v.  White,  1201,  1240 

Dana  ».  Boyd,  1269 

«.  Conant,  1266 

Danforth  v.  Dart,  10 

Daniels  v.  Davison,  53,  278,  279 

Darbishire  v.  Parker,  794, 824 

Darlington  v.  Commonwealth, 

1120,  1127 

Darrance  v.  Preston,  1 352 

Dasher  v.  Dasher,  1379 

Davant  v.  Carleton,  1380 

Davenport  v.  Gilbert,       836,  861,  864 

V.  Woodbridge,  440 

Davies  v.  Hopkins,  273 

Davis  0.  Barr,  431 

V.  Blunt,  278 

V.  Burt,  1346,  1362,  1369 

V.  Davis,  1252 

«.  D.  &  M.  R.  R.  Co.,  674 

V.  Duffle,  1317 

V.  Francisco,  739 

V.  Hanley,  805,  809 

V.  Keyes,  499 

V.  Ownsby,  239 

V.  Patty,  1374 

V.  Planters'  Bank,  812 

V.  Willan,  538 

V.  Williams,  919 

Davis  Sewing  Mach.  Co.  v.  Jones, 

395,  400, 1389 
Day  V.  Clark.  200 

V.  Newark  India  Rubber  Co., 

1306 
V.  Walmsley,  688 

V.  Zimmerman,  372 

Dean  v.  Boarder,  1268 

Deason  v.  Taylor,  330 

Debuys  v.  Mollere,  956 

Deering  v.  Flanders,  494 


Skction 

Deford  v.  Reynolds, 

483,  494 

Deitrich  v.  Lang, 

1045 

De  Lane  v.  Moore, 

224 

Delogney  v.  Smith, 

1113 

Delong  V.  Brainard, 

1212,  1213 

Den  V.  Adams, 

581,  596 

V.  Bennett, 

600 

V.  Mackaj', 

588 

V.  Mcintosh, 

607 

Dennis  v.  Barbour, 

1258 

V.  Morrice, 

945 

Denniston  v.  Imbrie, 

748 

Denn  v.  Rawlins, 

600 

Denny  v.  C!abot, 

525 

V.  Palmer, 

946,  991 

Deshon  v.  Fosdick, 

383 

Develing  ■».  Ferris, 

943,  944 

Dewey  v.  Littlejohn, 

245 

De  Yampert  v.  Brown,  207 

Dey  V.  Dunham,  186 

Dickens  v.  Beal,  829,  1001,  1004,  1005 

Dickerson  v.  Campbell,  45 

Dickinson  ?;.  Dickinson,  515 

Digman  v.  McCollum,  118,  205 

Dill  V.  Camp,  1253 

Distilled  Spirits,  The       677,  687.  690 

Dix  V.  Cobb,  ■  434 

V.  Flanders,  1390 

Dixsou  V.  Doe,  235,  246,  273,  278 

Dodd  V.  Atkinson,  1391 

Dodge  V.  Bank  of  Kentucky,  757 

V.  Potter,  171 

Dobree  v.  Eastwood,  795 

Doe  V.  Archer,  639 

V.  Baker,  593 

V.  Bell,  586 

V.  Brown,  1253 

V.  Calvert,  649 

V.  Chaplin,  616 

V.  Crick,  627 

V.  Goldwin,  619, 701 

V.  Hazell,  611 

V.  Howard,  612 

V.  Hulme,  617 

V.  Lea,  609 

V.  Martin,  1290 

V.  Miller,  609 

V.  Mil  ward,  645 

V.  Mizem,  620 

V.  Murless,  626 

v.  I'orter,  607 

V.  Quiffley,  594 

V.  Read,  623 

V.  Robinson,  621 

V.  Sayer,  593 

V.  Scott,  607,  611,  634 

V.  Spence,  612 


XX 


INDEX    TO    <  AiSKS    CITED. 


SiCTTOV. 

Doe    ».  Spitty,  1288 

V.  Stennett,  581 

V.  Summerset!,  616 

V.  Sweetser,  1121 

V.  Walters,  619,  701 

«.  Watkins,  6  2,  627 

V.  Watts,  581,  595 

V.  Wilkinson,  688 

V.  Williams,  626 

V.  Woodman,  627 

V.  Weightman,  629 

Dole  V.  Young,  413,  425 

Dolman  v.  Orchard,  483 

Donaldson  v.  Means,  956,  975 

Donath®.  Broomhead,  469 

Donley  v.  Camp,  398 

Donnelly  v.  Howie,  956,  966 

Dooley  v.  Wolcott,  14,  245,  274 

Doolittle  V.  Cook,  210 

Doon  V.  Donaber,  1276 

Dorsey  v.  Watson,  972 

Douglass  V.  Rowland,      388,  395,  401 

V.  Ray,  12U1 

V.  Reynolds,       392,  406,  407 

Dow  V.  Sayward,  525 

V.  School  Dist.,  1312 

Dowle  V.  Saunders,  56 

Down  V.  Rice,  117 

Downer  v.  Garland,  348 

V.  Remer,  902,  904 

Downs  -0.  Planter's  Bank,  805 

Doyle  V.  Gibbs, 

v.  Teas, 
Drake  v.  Hale, 
Draper  v.  Draper, 
Dresser  v.  Norwood, 
Drinkwater  v.  Tebbetts, 
Dronillard  v.  Whistler, 
Drummond  v.  Prestman, 
Drj-den  v.  Frost, 
Duchess  of  Kingston's  Case, 
Dulf  V.  Budd, 
Duffiekl  V.  Scott, 
Duggan  V.  King, 
Dunbar  v.  Brown, 
V.  Rawles, 
V.  Tyler, 
Duncan  v.  JSIatney, 
Dungan  v.  Miller, 
Dunks  V.  Fuller, 
Dunlapt?.  Higgins, 
Dunn  V.  Games, 
Dunning  v.  Foster, 
V.  Smith, 
Durbin  v.  Waldo, 
Durden  v.  Smith, 
Durham  v.  Price,  732 


Sbction. 
Durroset  v.  Hale,  1057 

Duryee  v.  Dennison,  975 

Dwight  V.  Scoville,  1021 

Dyer  v.  Pearson,  653 


E. 


Eagle  Bank  v.  Chapin,  1281 

Hathaway,       717,  914 
Earl  V.  M'Veigh,  "  1150 

Early  v.  Doe,  1106,  1116 

Eastbrook  v.  Eastbrook,  1033 

Eastman  v.  Amoskeag  Man'f.  Co., 

1280 
tJ.  Bennett,  1226 

V.  Little  1109,  1110 


601 

7 

1037 

1332 

687 

936 

1037,  1041 

405 

56 

214 

560 

418 

994 

390 

72 

985 

1089 

135t< 

278 

383 

348 

1222 

660 

1206 


V.  Thurman, 

737 

East  V.  Thoroughgood, 

1387 

East  Saginaw  &  St.  Clair  R.  R. 

Co.  V.  Benham, 

1127 

Edmonston  v.  Drake, 

408 

Edwards  v.  Banksmith, 

341 

V.  Cahawba, 

541 

V.  McFall, 

494 

V.  Thomas, 

88,  662,  682 

V.  Thompson, 

246 

V.  Trumbull, 

187 

Ehle  V.  Brown, 

296 

P;]ichelberger  v.  Finley, 

1009 

Eisenhart  v.  Slaymaker, 

1281 

Elee  V.  Wait, 

1063,  1140 

Eidridge  v.  Walker, 

358 

Ellsassar  v.  Hunter, 

1329 

EUershaw  v.  Magniac,  ■ 

477 

Elliott  I'.  Eddins, 

1101 

V.  Stone, 

635 

Ellis  V.  Jaszynsky, 

1221 

V.  Lull, 

1245 

V.  Paige, 

585,  607 

Ely  V.  Wilcox, 

210 

Emery  v.  Gas  Co., 

1123 

Emmett  v.  Butler, 

486 

Emmons  v.  Scudder, 

603 

Erickson  v.  Rafferty, 

27,  185 

Erskine  v.  Steamboat  Thames,       573 

Esdaile  r.  Sowerby, 

991 

Etherington  v.  Parrot. 

671 

fitting  V.  Schuylkill  Bank,      797,  840 

Evans  v.  Bicknell, 

56 

V.  Drummond, 

486.  490 

V.  Evans, 

724 

V.  Sweet, 

1273 

Everett  v.  Saltus, 

653,  669 

EwiQg  V.  Higby, 

1160 

Exch.  &  Banking  Co.  v.  Boyce,      905 


INDEX    TO    CASES    CITKD. 


F. 


Sbction. 
Fagg  V.  Clements,  1161 

Faircloth  v.  Jordon,  214 

Falconer  v.  Montgomery,  1188 

Falls'  National  Bank  v.  Townsley, 

910 

Fant  V.  Miller.  1237 

Fanton  v.  Fairfield  Co.  Bank,         48i 

Farmer  «.  Stewart,  1141 

Farmers'  Bank  v.  Duvall,  807 

V.  Yail,  819 

V.  Vanmeter,         1004 

?).Waples,  939 

Farmers'  Bank  of  Va.  v.  Gunnel,  985 

Farmers'  &  Citizens'  Bank  v. 

Payne,  683 

&  Mechanics'  Bank 
V.  Champlain  Tr.  Co., 

552,  553,  575 
w.Kirclieval,  402,418 

&  Merchants'  Bank  /'. 
Lonergan,  125 

Farnsworth  v.  Childs,         8,  231,  278 
Farnum  v  Towle,  991 

Farquarson  v.  Eichelberger,  1 1 5 

Farrar  «.  Eastman,  1112 

FauU  V.  Tinsman,  431 

Fay  V.  Jones,  432 

Feise  v.  Wray,  477 

Felton  V.  Pitman,  207 

Fenner  v.  Bufialo  &  State  Line  R. 

R.  Co.,  573,  57G 

Fenwick  v.  Macy,  362 

Ferrars  v.  Cherry,  51 

Ferrier  v.  Biizick,  347,  357 

Feurt  v.  Rowell,  224 

Field  V.  Ch.  &  R.  I.  R.  R.  Co.,        554 

Fifield  V.  Elmer  72 

Final  v.  Backus,  428 

Finch  V.  Newham,  348 

u.  Pinckard,  1119 

V.  Shaw,  56 

Finno  v.  Sayre,  210 

First  National  Bank  «.  Priest,       1265 

t\  Rverson,  713 

Firth  V.  Thrush,  "      817,  990 

Fish  1).  Chapman,  552 

V.  Jackman,  881 

Fisher  v.  Fredericks.  1352,  1364 

V.  Price,  936 

Fiske  V.  Newton,  571 

V.  Potter,  11,  31 

Fitchburg  Bank  «.  Perlev,  598 

Fitts  V.  Whitney,  1300,  1341,  1342 

Flaggy.  Clements,  1161 

Flaggu.  Mann,  279,282,684 


Section. 

Flavey  v.  Northern  Transp.  Co.,    548 

Fleming  v.  Beck,  1244 

V.  Burgin,  260 

Flint  V.  Sawyer,  1131 

Florence  v.  Paschal,  1367 

Foard  v.  Womack,  1003 

Fogarty  v.  Sparks,  343,  364 

Foland  v.  Boyd,  1022 

Foot  V.  Stevens,  1085 

Forbes  v.  Mansh,  72 

Ford  V.  Dallom,  957 

V.  Stuart,  431 

Forest  t.  Jackson,  278 

Foster  v.  Barney,  394 

V.  Black'stone,  58 

V.  Frampton,  462.  461 

V.  Newbrough,  1257,  1258 

V.  Pointer,  1289 

V.  Smith,  1221 

V.  Wade.  1196 

Fourth  National  Bank  v.  Heu- 

schon,  752 

Fowler  v.  Brantly,  94 

V.  Byrd,  348 

Fox«.Reeder,  ,  357 

Foye  V.  Leighton,  1280 

France  v.  Lucj',  1883 

Francis  v.  Norris,  1115 

Franklin  v.  Browulow,  497 

v.  Cannon,  150,  155 

Franz  v.  Orton,  285 

Fraschieris  v.  Henriques,  477 

Frazier  v.  Steenrod,  1088 

Freeborn  ■».  Glazier,  1192 

Freeman  v.  Thompson,  I3'i6 

Freeman's  Bank  v.  Perkins,  714 

Freidly  v.  Hamilton,  187 

French  v.  Bank  of  Columbia,        1004 

V.  Loyal  Co.,  316,  36S 

Frost  «.  Beekman,  158 

Fulcher  v.  Royal,  268 

Fuller  V.  Bennett,  263,  672 

V.  Hooper,  733,  1021 

V.  McDonald,  939 

V.  Wilson,  654 

Fullerton  v.  Bank  of  U.  S.,  805 

Fulton  V.  McCracken,  697,  715 

Fulton  Bank  v.  Benedict,  676,  685 

V.  N.  Y.  &  S.  Canal 

Co.,  (;8i 

Furber  v.  Caverly,  937 


u. 


Gaff  i;.  Sims, 
Gage  V.  licwis, 
Gale  V.  Walsh, 


418 

416 

1001 


XXll 


INDEX    TO    CASES    CITED. 


Skctioit. 

Galland  v.  Jackman,  246 

Galpiu  V.  Abbott,  124,  137 

V.  Page,  1085 

Gallway  v.  Mathew,  504,  524 

Games  v.  Stiles,  348 

Gardner  v.  Lacklan,  435 

Garnett  v.  Yoe,  1221 

Garrett  v.  St.  Louis,  1123 

Garth  v.  Ward,  345 

Garver  v.  Downies,  !J90 

Garvey  v.  Fowler,  1307 

Gary  v.  May,  1058 

Gate  wood  v.  Hort,  127,  133 

Gates  V.  Beecher,  837 

1).  Buslinell,  348 

Gawtiy  V.  Doane,  957 

Geill  D.  Jeremy,  805,816 

Gemmell  v.  Rice,  1047 
Gen'l  Ins.  Co.  r.  U.  S.  Ins.  Co., 

254,  683 

George  r.  Kent,  3il8 

«.  Middoutih,  1140 

V.  Wood,  '  203 

Gernon  «.  Bestick,  1097 

Gerrish  v.  Pike,         •  1235 

Gerson  v.  Pool,  49 

Gibbon  v.  Coggan,  956 

V.  Paynton,  542 

Gibbs  V.  Cannon,  417 

Gibler  v.  Trimble,  364,  365 

Gibson  v.  Choteau,  219 

V.  Colt,  660,  662 

V.  Culver,  574 

V.  Gibson,  1225 

t}.  Koll,  1074,  1130 

Gilbert  v.  Dennis,  782 

«.Jess,  12 

Gilchrist  v.  DonncU,  846.  915 

Gill  V.  Cubitt,  82 

Gillespie  v.  Edmonston.  384 

V.  Reed,  128 

Gilletv.  Fairchild,  428 

Gindrat^i.  Meclianics'  Bank,  702,  913 

Glasgow  V.  Pratte,  697,  706,  713 

Glasscock  v.  B'k  of  Mo.,  706 

V.  Robards,  593 

Gleason  v.  Gleason,  586 

Glencoe  v.  People,  1363 

Glenn  v.  Glenn,  1245 

Globe,  The,  1186 

Goddard  v.  Pratt,  488 

V.  Lyman,  87 

V.  Sawyer,  272 

Godfrey  «.  TurnbuU,  513 

Gold  V.  Death,  693 

Good  ay  v.  Corlies,  1235 

Goodloe  V.  Bartlett,  124() 


Sbttion. 

Goodman  v.  Harvey,  80,  83 

?).  Norton,  805 
V.  Simonds,         80,  85,  372 

Goodright  v.  Cordwent,  648 

Goodsell  V.  Sullivan,     '  202 
Good  title  v.  Woodward,    616,  697, 700 

Goodwin  v.  McGehee,  348 

Gordon  r.  ^Montgomery,  933 

Gorham  v.  Luckett,  1187 

Gossler  v.  Schepeler,  477,  479 

Gott  V.  Dinsmore,  553 

Goudy  V.  Hall,  1138 

Gouger  v.  Jollv,  540 

Gould  ».  Chase,  431 

V.  Hill.  552 

Gove  V.  Vining,  940 

Goveneur  v.  Lynch,  278 
Gowan  v.  Jackson.         733,  751,  1021 

Grafton,  The  Ship.  563 

Graham  v.  Oldis.  1282 

Grand  Bank  c.  Blanchard,  794 
Grand  Tower  Mining,  &c.,  Co.   v. 

Schirmer,  1376 

Granger  v.  Brown,  633 

V.  Clark,  1085 

Grunile  Bank  r.  Avers,  916 

Grant  v.  Spencer,  1026 

T.  White.  581,  594 

V.  While.  1321 

Graves  v.  Graves,  112,  124 

r.  Merry,  513 

Gray  v.  Bell,    "  738 

i\  Hawes,  1137 

V.  Lirnraore,  1031 

Greely  v.  Hunt,  738 

Green  v.  Deakin,  528 

V.  Deal,  197 

V.  Slayter,  10,  341 

V.  Thompson,  417 

V.  Warnick,  197 

V.  White,  347 
Green,  &c.,   Navigation  Co.,   v. 

Marshall,        "  573 

Greene  v.  Farley,  714,  912 

Greenleaf  «.  Edes,  239 

Greenmau  v.  Harvey,  1377 

Grewell  v.  Henderson.  1069 

GrifHn  v.  Cunningham,  146 

V.  Goff,  975 

r.  Pugh,  72 

V.  Wilcox,  438 

V.  Shetlield,  1268 

Griffith  V.  Griffith,  351 

Grignon's  Lessees  i\  Astoi',  1085 

Grimes  v.  Fall,  1257 

Grimstone  v.  Carter,  188,  279 

Grinman  v.  Walker,  786,  830 


INDKX    TO    CASES    CITKD. 


Grinnan  v.  Baton  Rouge  Co., 
Griswold  v.  Waddington, 
GrofFe.  Ramsey, 
Grosvenor  v.   Atlantic  Fire 
Co., 

■0.  Stone, 
Groton  v.  Dallheira, 
Grout  V.  Hill, 
Guilford  v.  Smith, 
Guion  V.  Knapp, 
Gumm  V.  Sinclair, 
Gunson  v.  Metz, 
Gwinn  v.  Turner, 


Skotion.i 
516 

7.12,  981 ! 
278 

Ins. 

445 

730,  731 

1018 

466 

464 

203,  331 

.      611 

962 

167 


H. 


431 


Hackett  v.  Martin, 
Hackwith  v.  Damron, 
Haeseig  v.  Brown, 
Hagthorp  v.  Hook, 
Halm  V.  Kelly, 
Haley  v.  Williams, 
Hall  V.  Cheney, 

V.  Hale, 

V.  Pillow, 

v.  Robinson, 

V.  Smith, 

V.  Wadsworth, 
Halleck  v.  Moss, 
Hallowell  «.  Curry, 
Hally  V.  Oldham, 
Halsey  >\  Carter, 
Halstead  v.  Bank  of  Kentuc 
Hamlin  ».  Bevans, 
Hamilton  v.  Boggess, 

V.  Lycoming  i\fut 

Co., 
«.  Marks, 
V.  Royse, 
Hammond  v.  Gilmore, 
«.  Hoppin, 
Hancock  v.  Beverly, 
Hankinson  v.  Barbour, 
Hanly  v.  Morse, 
Hanrick  v.  Thompson, 
Hansen  v.  Fish, 
Harbeck  v.  Toledo, 
Harden  v.  Boyce, 
Hardin  v.  Harrington, 
V.  Kretsinger, 
Harding  v.  StatVord, 
Hardy  v.  Summers, 
Hargen  «.  Bemis, 
Hargreaves  v.  liothwell, 
Harkcr  v.  Anderson 
Harlan  v.  Sealon, 
Harrington  v.  Fortner, 


,  438,  '142 

277,  310 

93 

310 

1085 

1184 

558 

90,94 

77,  224 

428 

279 

578 

1129 

819 

232,  266 

1199 


kv 


Iu> 


113 
352 
211 


383 

80,  87,  88 

313,314 

418,  419 

1266 

219 

11,246 

277 

292 

1188 

1127 

980 

60,  61 

1266 

1199 

273 

921 

689 

1398 

219,  221 

140 


Section. 

Harrington  v.  Loomis,  1043 

Harris  v.  Arnold,  273 

V.  Brown,  1234 

V.  Carter,  841 

V.  Ferrand,  1387 

V.  Fly,  824 

L\  Frink,  593 

i\  Grodner,  1057 

/;.  Memphis  B'k,  922 

V.  Pratt,  466 

V.  Robinson,  821,  921 

V.  Whitcomb,  1257 

Harrison  v.  Bailey,  1397 

V.  Farmers'  B'k  of  Va. ,   146 

V.  London,  Brighton  & 

S.  Coast  R"y  Co.,        542 

V.  Ruscoe,  719 

V.  Trader,  1000 

Harrold  r.  Simons,  163 

Hart  V.  Alexander,  485 

V.  Carpenter,  72 

V.  Chalker,  187 

V.  Farmers'  &  Mechanics' 

Bank,  685,  687 

V.  Gray,  1341,  1842 

V.  Munson,  738 

V.  Robinet,  1267 

Hartford  Bank  v.  Hart,  683 

V.  Stedman,      795,  818 

Hartley  r.  Case,  780,  784 

Hartmyer  v.  Gates,  155 

Harvey  v.  Fisk,  1086 

V.  Mitchell,  1274 

Harwood  v.  Jarvis,  1016 

V.  Smethurst,  1172 

Haskell  v.  Bartlett,  1125 

V.  Boardman,  946,  950 

V.  State,  49 

Hass  V.  Weinhagen,  1210 

Hastings  v.  Cutler,  4,  7,  12 

V.  Pepjier,  452 

Hatch  V.  Dennis,  431 

V.  Taylor,  660 

Havens  v.  Bliss,  273 

1).  Sherman,  1075,  1130 

Hawks  1-.  Salter,  805,  813,  822 

Hawley  v.  Cramer,  61 

Hayden  v.  Boyce,  983 

■p.  Bucklin,  357 

V.  Dunlap,  1087 

Haynesv.  Birk.';,  781,  817 

V.  Brown,  676 

V.  Meek.s,  1129 

Hays  11.  Lewis,  1062 

r.  Mnnille,  464 

V.  liiddle,  1263 

Hay  ton  v.  Hope,  1211 


INDEX    TO    CASKS    OITKO. 


Skction. 

Hayward  v.  National  Ins.  Co., 

674,  088 

Haywood  v.  Russell,  IO08 

Hazard  v.  White,  I'-jO 
Hazleton  Coal  Co.  «.  Ryerson,        8S3 

Hazlett  ».  Poultney,  714 

Head  v.  Fordyce,  374 

Heath,  Ex  Parte,  »97,  09!) 

Heatly  v.  Fluster,  341 

Heaton  «.  Findlay,  1227 

«.  Hulbert,  420.  422 

Heermans  v.  Ellsworth,  8 

Helj^ear^;.  Howke,  (553,  ()()2 

Hempstead  v.  Darby,  1211 

Henderhen  v.  Cook,  668,  (i!)l 

Hendley  v.  Baccus,  1372 

Hendrick  v.  Davis,  1080 

Hendrickson's  Appeal.  198 

Henly  v.  Gore,  376 
Hennen  v.  New  Orleans  «t  C.  II. 

R.  Co.,  1206 

Hennessey  «.  Stewart,  1 2r)6 

Henning  ®.  Fisher,  146 

Henning's  Case,  1387 

Henry  «.  Morgan,  (i!)3,  604 

V.  Raiman,  (JO,  26.'> 

Herdman  «.  Short,  1074 

Herndon  v.  Kimball,  112 

Herrin  v.  Libbey,  1243,  1321 

Herrington  v.  Herrington,  357 

Hesters  v.  Petrovic,  745,  747 

Hetherington  v.  Clark,  205,  223 

Hevener  v.  Heist,  1 358 

Hewitt «.  Weatherby,  134 

Heywood  v.  Russell,  1078 

Hiern  v.  Mill,  47,  56 

Hickman  v.  Dale,  343 

Hicks  v.  Hankin,  656 

V.  Skinner,  224 

Hightower  ».  Ivy,  930 

Hildreth  v.  Lowell,  1342 

Hill  /;.  Calvin,  390 

V.  Faison,  10(>0 

«.  Grant,  1368 

r,.  Humphreys,  574 

r.  Kroft,  372 

V.  Mason,  1121 

V.  Manchester,  Ac,  Co.,  676 

V.  Martin,  045 

/:.  Meeker,  210 

V.  Norris,  1013 

V.  Norvell,  907 

0.  Planters'  Bank,  717 

V.  Simpson,  331 

v.  Varrell,  90!) 

Hine  v.  Allely,  781 

►            V.  Dodd,  245 


Hipes  V.  Cochran, 
Hiscock  V.  Phelps, 
Hix  V.  Cornelison, 
Hobart  v.  Hilliai'd, 
Hobbs  i\  Clements, 


gSCTIOK. 

1236 
1318 
1194 
1390 
1117 


v.  Memphis  Ins.  Co.,  444 

Hodges  v.  Brett,  1365 

Hodgson  V.  Dean,  104,  lOft 

Hortmann  v.  Smith,  1003 

Holbrook  v.  Vose,  472 

Holbrow  V.  Wilkins,  401,  423 

Holdane  v.  Butterworth,  515 

Holland  ».  Turner,  946,  951 

Hollister  i\  Xowlen,  552 

Holman  v.  Eiterman,  1161 

v.  Whitney,  943 

Hoist  V.  Pownal,  462 

Holtr.  Miers.  1287 

Home  Ins.  Co.  e.  Green,  887 

Home  Life  Ins.  Co.  v.  Pierce,  688 

Honore's  Ex'r  v.  Bakewell,  330 

Hood  V.  Falmestock,        283,  688,  692 

Hoover  v.  Tibbits,  46(> 

V.  Wise,  686 

Hople^^  V.  Dufresne,  975 

Hopes  V.  Alder,  705 

Hopkins  v.  Gerrard,  246 

V.  Liswell,  956 

V.  McLaren,  348 
Hopkirk  «.  Page,           981,  1004,  1006 

Hojjpiu  y.  Doty,                      •  23 

Morton  v.  Bayne,  80,  87 

Hotchkiss  V.  Hunt,  72 

Hough  V.  Gray,  420,  422 

House  V.  Adams,  983 

Housego  v.  Cowne,  831 

Houseman  v.  Mut'l  Build.  &  Sav. 

Ass'n,  688 
Houston  &  Tex.  Cent.  Railw.  Co. 

'«.  Hodde,  571,  573 

Hovey  t).  Blanchard,  691 

Howard  v.  Ives,  715,  795,  818 

V.  Kennedy,  343 

Howard  Ins.  Co.  ■».  Halsey, 

17,  43,  203,  688 

Howe  «.  Bradley,  836 

v.  Hall.  1263 

V.  Nickels,  390 

V.  Thayer,  486 

Ilowrv  y.  Epjnnger,  90,  92 

Howell  V.  Iluyck,  1262,  1268 

Hoxie  -B.  Carr,  26 

Hoy  V.  Bramhall,  10 

lloyt'o.  Jefters,  f)95 

Hubbard  v.  Matthews,  748,  753 

iliiddeson  r.  Prizer.  1358 

Hudgcnsu.  .Jackson,  1006 


INDKX    TO    0A8KS    OITED. 


Section. 

Sbotion. 

Hudson  V.  Warner, 

34 

Jackson  i:.  Bryan, 

588 

Huff?;.  Hutchinson, 

1085 

V.  Bull, 

216 

Hughes  V.  Bowen, 

956 

V.  Burgott, 

7 

V.  Osborn,                11 

5.1, 

1346 

V.  Dubois, 

230 

V.  United  States, 

278 

V.  French, 

593 

V.  Watt, 

1094 

V.  Green, 

588 

Hulbert  v.  Pacific  Ins.  Co., 

670 

■v.  Hopkins, 

5S9,  599 

Hulings  V.  Guthrie, 

338 

V.  Laughead, 

588 

Hull  V.  Noble, 

277 

V.  Leek, 

G72 

Hultaiu  V.  Munigle, 

609 

V.  Moncrief, 

593 

Hume  V.  Watt, 

75fi,  878 

V.  Nichol, 

464 

Humphries  v.  McCraw, 

1230 

v.  Niven, 

588 

Hunt  V.  Bailey, 

606 

r.  Parkhurst, 

595 

V.  Crane, 

1243 

V.  Post. 

229 

V.  Lowell, 

1255 

V.  Richards, 

779 

■».  Maybee, 

990 

V.  Rowan, 

593 

Hunter  v.  Boucher, 

671 

V.  Sample, 

595 

V.  Hook, 

957 

V.  Sharp, 

672 

V.  Hudson, 

654 

V.  Stackhouse, 

599 

Huntington  v.  Charlotte, 

1085 

V.  Stone, 

343 

V.  Harve}^, 

Oort,  966 

V.  Tuttle, 

343 

Hussey  -v.  Freeman, 

965 

V.  Van  Valkenburg, 

Huston  V.  Peters, 

575 

34, 

188, 

245,  252 

Hutcheson  v.  Johnson, 

1321 

V.  Wilsey, 

587 

Hutchings  v.  Nunes. 

480 

V.  Winslow, 

672 

Hutchins  V.  Bank  ofTenn., 

504 

V.  Woolsey, 

1271 

V.  Hudson, 

504 

Jacob  i 

.  Lee, 

1382 

Hutchinson  v.  Hartman, 

204 

Jacobs 

V.  Turner, 

858 

Hutchison  v.  Blakeman, 

385 

James 

V.  Brown, 

203 

Hutz  V.  Karthause, 

736 

V.  Griffin, 

465 

Hyatt  V.  Bank  of  Ky., 

822 

V.  Morey, 

119, 

186,  272 

Hyde  v.  Navigation  Co., 

574 

V.  Wade, 

984 

Hyslop  V.  Hoppock,              1 

3-19, 

1356 

Jameson  v.  Swinton, 

697, 

703,  790 

V.  Jones, 

829 

Janes  v 
Janney 

.  Scott, 

V.  Speddon, 

417 
1050 

I. 

Jaques  v.  Weeks, 

28, 

187,  278 

Jarvis  i 

.  Barrett, 

1031 

Ills.  Central  R.  K.  Co.  v.  Mo 

Javis  V 

x\ikens. 

201 

rison. 

553 

JefTord 

V.  Ringgold, 

1286.  1290 

Ince  V.  Everard, 

161 

Jencks 

0.  Phefps, 

348 

Inglehart  v.  Thousand  Tslan 

i 

Jenks  ' 

;.  Payne, 

1176 

Hotel  Co., 

671 

Jenkins  v.  Blizard, 

503 

Ingrem  v.  Phillips, 

231 

V.  State, 

1187 

Irby  V.  Vining, 

485 

V.  Usborne, 

478 

Ireland  v.  Kipp, 

780,  847 

Jennin^ 

^s  V.  Moore, 

691 

Irvin  V.  Smith, 

364 

V.  Roberts, 

723 

Isaacs  V.  Shattuck, 

1090 

V.  Wood, 

147 

Isbell  V.  Kenyon, 

1092 

Johnson  v.  Baker, 

1143 

Isettc.  Hoge," 

421 

V.  Bloodgood, 

440 

Isley  V.  Jones,                   413, 

414,  415 

V.  Jones, 

658,  6(i8 

V.  Stubbs, 

466 

V.      " 

1369,  1378 

Izett  V.  Mountain. 

542 

V.  Ldftlin, 
V.  Monell, 

676 
1354 

J. 

V.  Powers, 
V.  Reise, 

72 
1086 

Jaccard  v.  Anderson, 

934 

7).  Thweatt, 

328,  :!34 

Jacks  V.  Darrin, 

1009 

V.  Way, 

80 

XXVI 


INDEX    TO    CASES    CITED. 


Section. 

Johnson  County  v.  Thayer, 

679 

Johnston  v.  Chapman, 

421 

V.  Gloncy, 

273 

Johnstone  v.  Huddlestone. 

029 

,645 

Jolhind  r.  Stainbridge, 

29,245 

,258 

Jolley  V.  Taylor, 

1264 

Jones  V.  Bamford, 

i8r 

,672 

V.  Byrd, 

1161 

V.  Chiles, 

343 

V.  Fales, 

1397 

V.  Lapham, 

261 

V.  Lewis, 

876 

V.  Love, 

1253 

It.  Mansker, 

851 

V.  Marsh, 

640 

V.  ]\liddleton, 

738 

«.  O'Brien, 

967 

V.  Roberts, 

119 

,  143 

V.  Smith, 

35 

V.  Vorhees, 

552 

*■.  Warden, 

821 

i\  Witter, 

430 

43i 

,442 

Jordan  v-  Gillen, 

428 

Jordon  v.  Hazard, 

1230 

V.  James, 

464 

Judah  V.  Judd, 

438 

)!.  Stephenson, 

1 

)84, 

1138 

Judd  V.  Woodrutt', 

156 

Justice  V.  Elstob, 

1282 

K. 

Kaine  v.  Deuuiston, 

323 

Kamm  v.  Stark, 

1323 

Kansas  City,  St.  J.  &  C. 

B.  R 

.  R. 

V.  Campbell, 

1316 

Karr  v.  Karr, 

1148 

Kay  V.  Allen, 

392 

Keenan  v.  Missouri  Ins 

.Co. 

678 

Keeney  v.  Lyon, 

1188 

Kehler  i\  Jack.  3Ianuf.  Co., 

1136 

Kellar  v.  Savage, 

12G.'), 

1280 

Keller  i-.  Nutz, 

210 

Kelley  v.  Brown, 

957 

Kellogg  V.  Corrico, 

1066 

V.  Fancher, 

372 

V.  McLaughlin, 

1120 

V.  Putnam, 

1204 

Kellum  V.  Smith, 

122  i 

Kelly  V.  Mills, 

233 

Kenible  v.  Wallis, 

1389 

Kemeys  v.  Richards, 

528 

Kemp  V.  Derrett, 

607, 

61f 

,  (i33 

Kendall  v.  Lawrence, 

288,  290 

Kenedy  v.  Green, 

37.  688 

V.  Nothup, 

217 

Kennedy  v.  Dalj-, 

50,63 

Kennedy  v.  Bohannon, 
Keuney  v.  Altvater, 
Kent  V.  Plumer, 

V.  Warner, 
Kepler  v.  Davis, 
Kerns  v.  Swope, 
Kerr  t.  Clark, 

v.  Day, 

V.  Hitt. 

V.  McGuire, 

V.  Willan, 
Ketchum  v.  Clark, 
Kidder  r.  Peoria, 


Section. 

492 

500 

305 

1397 

50 

12 

613 

278 

1066 

1284 

538,  544 

486,  513,  519 

1127 


Killep  V.  Empire  'Mill  Co.,  1190, 1198 

Kimball  v.  Blaisdell,  216 

Kimpton  ??.  Glover,  1234 

Kincheloe  r.  Holmes,  13^8 

King  V.  Bill,  342,  347 

V.  Connollj%  637 

V.  Harrington,  1046,  1081 

V.  Lowrv,^  1272,  1291 

V.  Ritchie,  1243 

Kingsburj'  r.  Smith,  1223 

Kinning  v.  Buchanan,  1161 

Ex  parte,  1161 

Kinsley  v.  Robinson,  1004 

Kipp  V.  Fullerton.  1383 

Kirkwood  v.  Reedy,  1381 

Kiser-y.  Htuston,  255 

Kitchen  v.  Crawford,  1082 

Kitsmiller  v.  Kitchen,  1149 

Kleinmann  v.  Boerslein,  860 

Klemm  r.  Dewes,  1138 

Knapp  V-  Runalls,  960 

Knarr  v.  Conway,  1219 

Knouft"  v.  Thom])son,  230 
Knowles  ;;.  Gaslight  &  Coke  Co.,  1379 

Knox  V.  Miller,  1371 


V.  Thompson, 
Kohl  V.  Lynn. 
Kohn  V.  Packard, 
Kohnig  V.  Bayard, 
Kramer  v.  Farmers  and  Mechan- 
ics' Bank, 
V.  Sandford, 
Krider  v.  Lati'erty, 
Kyle  V.  Green, 


278 

77 

574 

711 

180 

943 

246,  280 

943,  944 


L. 


961,  97.- 


Ladd  V  Kinney, 

Lafayette   Insurance   Co.,   v. 

French,  1302,  1303 

Lafitte  r.  Slatter,  991,  1004,  1010 

La  Farge  Ins.  Co.  v.  Bell,  688 

Lagrave's  Case,  1358 

jLaing  v.  Coldar,  541 


INDEX    TO    OASES    CITED. 


XX  VII 


Section. 

Laithe  v.  McDonald,  1249 

Lake  v.  Reed,  80 

Lally  V.  Holland,  14!),  174 

Lamb  v.  Pierce,  14 

V.  Western  R.  R.  Co.,  56fj 

Lambert  v.  Ghiselin,  t'90 

V.  Sample,  1847 

Lamont  v.  Cheshire,  49 

V.  Stimson,  7 

Lamphere  v.  Cowen,  418,  1390 

Lane  v.  Jackson.  460 

V.  Steward,  939,  941 

Langan  v.  Hewett.  525 

Langdale  v.  Trimmer,  71G,  794,  817 

Langdon  v.  Poor,  1107,  1109 

Lauge  ■«.  Kenmdy,  499 

Lank  v.  Hiles,  269 

Lansing  I).  Gaine,  483,  518 

Laporte  v.  Landry,  879 

Larabee  v.  Searsp'ort,  1400 

Largrave'8  Case,  1358 

Larrabee  v.  Morrison,  1209 

Lathrop  v.  Mitchcl,  1259,  1281 

Lawler  &  Whetts,  1059 

Lawrence  v.  Bowman,  1324,  1325 

V.  Clark,  1287 

V.  Ralston,  956,  966 

V.  State,  1031 

Lawson  v.  Farmers 


Bank, 
716, 


V.  Townes, 

V.  Weston, 
Layer's  Case, 

Lea  V.  Polk  County  Copper  Co., 
Leach  v.  Hewitt, 


805,  811 

397 

80,81 

1261 

273 

1017 


Leathers  v.  Commercial  Ins.  Co.,  981 

Leavitt  v.  Peck,  525 

V.  Putnam,  738 

V.  Simes,  1281 

Lee  V.  Averell,  348 

V.  Dick,  395,  396 

V.  Marsh,  553 

Leeds  v.  Cameron,  272 

Leeson  v.  HoK,  537,  538 

Leflfingwell  v.  White,  938 

Legge  V.  Thorpe,  1004,  1009 

Lei  by  v.  Wolf,  205,  223 

Leiman's  Estate,  17 

Le  Marchand's  Case,  1261 

Le  Neve  i\  Le  Neve,  50,  687,  690 

Leonard  v.  Gary,  956 

Lenoir  v.  Broadhead,  1367 

Lenox  v.  Roberts,  779,  814 

Lento.  Padleford,  1387 

Leonard  v.  Shirts,  416 
Lesassier  v.  The  Southwestern,       473 

Le  Roy  v.  .Johnson,  483,  524 


Sectton. 

Leverich  v.  Mayor  of  New  York,    657 

Levy  V.  Cohen,  383 

Lewin  v.  Dille,  1250 

Lewis  V.  Bakewell,  768 

V.  Botkin,  1375 

V.  Bradford,  11,  28,  278 

ti.  Grace,  1153 

V.  Mew,  351 

Lewiston  Falls  Bk.  r.  Leonard,       892 

JJbby  V.  Pierce,  741 

Lieman's  Estate,  17 

Life  &  Fire  Ins.  Co.  v.  Mech.'s 

Life  his.  Co.,  1280 

Ins.  Co.  V.  Rowand,  142 

Life  Ins.  Society  v.  Pooly,  431 

Light  v.  Kingsbury,  738 

Lightner  v.  Mooney,  196,  278,  295 

Likens  v.  McCormick,  1030,  1355 

Lilley  v.  Miller,  1009 

Lilliard  v.  Ruckers,  2)5 

Lime  Rock  Bank  v.  Hewitt,  874 

V.  Plimpton,        655 


Lindaur  v.  Mutual  Safety  Ins.  Co, 

1235 
Lindenburger  v.  Beall,  781,  882 

Lindo  V.  Unsworth, 
Linville  v.  Welch, 
Ijisher  v.  Parmclee, 
Litt  V.  Cowle  , 
Little  1).  Clarke, 

V.  Page, 
Livingston  v.  Dean, 
Livingstone  v.  Tanner, 
Lloyd  v\  Hooper, 

i'.  Waterford  &  Limerick 
Railw.  Co., 
Loan  &.  Trust  Co.  v.  Maltby, 
Lockwood  V.  Crawford, 
Lodge  V.  Simonton, 
Logan  V.  Herron, 
Logan  V.  WiLiams, 
Loose  V.  Loose, 
London  &  N.  W.  Railw.  Co. 
v.  Bartlett, 
V.  Dunham, 
Long  V.  Dollarhide, 
Losey  v.  Simpson,  205, 

Loud  V.  Merrill, 
Loughridgc  v.  Bowland, 
Louisiana  St.  Bk.  v.  Buhler, 
1).  Ellery, 
V.  Rowel, 
V.  Senecal, 
Louisville  Manuf.  Co.  v.  Welch, 

406,  411,  426 

Lovejoy  ?j.  Jjunt,  1031,111;' 

■0.  Spatford,  519 


819 
109 

1168 
463 
504 
72 
431 
597 

1181 


560 
214 
738 
321,  324 
581,  608 
127 
972 

462 
561 
i,  210 
,  210 
821 
302 

loot 

749 
880 
683 


20: 

2()'; 


XX  via 


INDEX    TO    CASES    CITED. 


Low  V.  Blinco, 

V.  Howard, 
Lowe  ■?;.  Beckwitb, 

V.  Skinner, 
Lowery  v.  Scott, 
Lowry  v.  Steele, 
Lowther  v.  Carlton, 
Loyd  r.  Angliu, 
Ludlow  V.  Kidd, 
Liimbert  v.  Palmer, 
Liiudie  V.  Eobertson, 
Luther  v.  JMcMichael, 
Lyendecker  v.  Martin, 
Lyle  V.  Bradford, 
Lyon  r.  Johnson, 
Lysagh  v.  Bryant, 
Lyftle  v.  Pope, 

M. 


Sectiost. 
232,  266 

958 


390,  40^ 


409 
216 
918 
936 
62,  348 

1097 
358 

ia97 
975 

1093 

1151 
348 


Sbctiok; 
Marvin  v.  Adamson,  420, 422 

Mary  Washington,  The,    571,573,  576 


Mason  v.  Martin, 

V.  Pritchard, 
Maspero  v.  Pedesclaixx, 
Massachusetts  Bank  v.  Oliver, 
Massie  v.  Greenhow, 
Masters  v.  A\''arren, 
Masterson  v.  Ellington, 
V.  Herndon, 
Matthew  v.  Dare, 
Mathews  v.  Allen, 
Matteson  v.  Smith, 
Matthews  v.  Houghton, 


3Iacey  ■».  Feuwick, 

Macon  v.  Sheppard, 

Macklin  v.  Waterhouse, 

Mackubin  v.  Smith, 

Mactier  v.  Frith, 

Madden  v.  Fielding, 

Maddox  v.  Humphries, 

Magee  v.  Badger, 

Magill  V.  Merrie, 

Mahew  v.  Eames, 

Malick  X.  Tower  Grove  &  Lafay- 
ette R.  R.  Co., 

Manchester  Bank  v.  Fellows,  794, 

Mangles  r.  Dixon, 

Mann  v.  Best, 
V.  Moors, 

Manning  v.  Gasharie, 

Manufacturtrs'  Bank  v.  Bank  of 
Pennsvlvania- 


505, 512  Maul  v.  Eider, 

722  Maupin  &  Emmons, 
348  Maundrell  v.  Maundrell, 
i\Iaving  I".  Todd, 
May  r.  Boisseau, 
V.  Coffin, 
355,  373  Maybin  v.  Kirby, 
273,  278,  289  Mayfield  v.  Wheeler, 
544  Mavham  v.  Coombs, 
1041,  1042  Ma^-o  v.  Cartwright.     • 
383| Mayor,  Ac,  v.  Williams, 
1138|McAuelly  v.  Chapman, 


Manwairing  v.  Sands, 
Mara  v.  Pierce, 
Marberger  v.  Pott, 
March  v.  Putney, 
Mark  ward  v.  Dor  i  at, 
Marlett  v.  Jackman, 
Marlow  v.  Marlow, 
Marsh  v.  Cohen, 

V.  Maxwell, 
Marsh's  Adm'rs  v.  Bast, 
Marshall  v.  Baker, 

V.  Mitchell, 
Martin  v.  Nash, 

V.  Sale, 

v.  Stiles, 

V.  Winslow, 
Martindale  v.  Price, 


97 

410 

765 

924 

29 

1239 

1211 

1209,  1219 

1225 

956 

1346,  1371 

442 

210 

16,17 

57 

536 

953 

991 

10 

390 

225,  245,  248 

97 

17,40,  118 

67 

1207 

319.  324 

1211 

219,  222 

781 

1263 

1856 

1381 

140,  211 

138S 

1245 

1253 

688,  692 

205,  223 

879 


348  McArthur  r.  Dudgeon, 
80  McAteer  v.  McMullea. 
494  McCabe  v.  Lecompt, 
551  McCamant  r.  Patterson, 

McClane  v.  Fitch, 
695  McClean  v.  Hertzog, 
,  797  McClosky  v.  Cobb, 
431  McClure  o.  Wells, 
239  McClurgy.  Phillips, 
926  McColIum  v.  Cushing, 
1236  McConnell  v.  Stettinius, 
McCormack  v.  Irwin, 
186  V.  Wheeler, 

V.  Hazard,     925  McCoy  t.  Trustees, 

671iMcCrummen  v.  McCrummen 

274  McColloch  v.  Cowher,  273 

422  McCulloch  v.  Eatrle  Ins.  Co.,  384 

402, 426  V.  Eudalay,  217 

1190  McCutchen  v.  McGahay,  671 

498  McDaniel  v.  Correll,  1354 

1257,  1291  McDaniels  v.  Flower  Brook  Man. 

1210         Co.,  10 

799  McDcrmot  v.  Board  of  Police, 

1358  1139,  1334 

821  McDonald  v.  Bailey,  937 

941,  946  V.  Leach,  155 

326  V.  Western  R.  R.  Corp.. 

220  570 

344^  Mel  )ugald  v.  Smith,  1227 

9r)7iMcElroy  v.  English,  820 

116,  l75|McGeheei).  Gindrat,  10 


INDEX    TO    CASES    CITED. 


XXIX 


Section 

126;: 


1239 
357 
154 
393 

738 

1257 

739 

188 

348 

},  277 

369 

560 
291 


McGiunis  «.  State, 

V.  Washinglou  Hall 
Association, 
McGregor  v.  McGregor, 

V.  Hall, 
Mclver  v.  Richardson, 
McKeaver  v.  Kirtland, 
McKillipc.  Mcllheany, 
McKinney  v.  Crawford, 
McLauahan  v.  Reeside, 
McLaren  v.  Thurman, 
McLaughlin  v.  Shepherd,        27;^ 
McLourine  v.  Monroe, 
McManus  v.  Lancashire,  &c. 

Railw., 
McMechan  v.  Griffing, 
McMillan  «.  M.  S.  &  N.  I.  R.  R. 

Co.,  555,  565,  570 

IVtcMurtrie  v.  Jones,  843 

McNatt ».  Jones,  871 

McNeill  V.  Tenth  Nat.  B'k,  78 

McNeilage  v.  Halloway,  728 

McNeill  0.  Wyatt,  717,  735 

McNeilly  v.  Continental  Life  Ins. 

Co.,  671 

McRae  v.  Rhodes,  1004 

Mead  v.  Engs,  714 

V.  Lord  Orrery, 
Mechanics'  Bank    v.  Griswold, 

732,  948 
V.  Livingston,  510 
V.  Seton,  672 

V.  Schauni 


Merz  V.  Kiser, 
Messenger  v.  Armstrong, 

V.  Penn.  R.  R.  Co 
Messick  v.  Sunderland, 
Metcalf  i;.  Richardson, 

y.  Smith, 

V.  Pulvertaft, 
Meux  V.  Anthony, 
Mevrick  v.  Woods, 
Mich.  Cent.  R.  R.  Co.  v.  Dolan, 
V.  Hale, 
■B.  Ward, 
Mich.  Ins.  Co.  v.  Whittimore, 
Milam  v.  Strickland, 
Mulbourn  v.  Fonts, 
Miles  V  Goffinet, 

V.  Hall, 
Miller  v.  Bradford, 

V.  Cresson, 

V.  Graham, 

V.  Hackley, 

V.  Kershaw, 

V.  Perrine, 

V.  Race, 

V.  Sherry, 

V.  Stocking, 
Milliken  >\  Barr, 
350  Mills  V.  Beard, 

V.  U.  S.  B'k, 
Milton  0.  Rowland, 

V.  Turner, 
Mines  v.  West, 
[Miner  v.  Natchez, 


Section. 
855 
649 
555 
123 
831 
348 
M^ 
348 
1286,  1292 
674 


555 

574 

1204 

1368 

1365 

1170 

893 

148,  167 


burg,  674,  688  Minturn  v.  Fisher, 
Mechanics'  &  Traders'  Bank  Miser  v.  Grovinger, 


V.  Gordon,  452,  542 

Mechanics'  &  Traders'  Bank  of 

New  Orleans  v. 


1109 
975,  1021 
349 
1314 
81 
353 
1170 
1258,  1261 
936 
836 
1222,  1254 
195 
372 
1086,  1995 
938 
, 758,  1004 


Compton, 

896 

Mehan  v.  Williams, 

44,688 

Mellon's  Appeal, 

227 

Melvin  v.  Clark, 

1374 

Mendioca  v.  Orr, 

1363 

Merchants'  Bank  v.  Birch, 

766 

V.  Easley, 

1017 

Merchants'  Disp.  Tr.  Co.  v.  Hal- 

lock, 

566 

Merriam  v.  H.  &  N.  H.  R.  R 

Co., 

455, 

456,  532 

Merrick  v.  Phillips, 

80,87 

V.  Wallace, 

152 

Merril  v.  Dawson, 

1246 

Merrill  v.  Montgomery, 

1032 

MeiTills  V.  Swift, 

180,  181 

Merritt«.  White, 

1367 

Mertins?)  Joliffe, 

313 

Merwin  v.  Smith, 

1088 

Missouri,  Kans.  «&  Tex.  R'y  Co.  v. 

Crowe,  1310 

Mitchell «.  Cross,  805 

«.  Gray,  1084,  1138 

V.  Greenwald,  1375 

V.  Lipe,  1097,  1098 

V.  llunkle,  1138.  114; 

V.  Woodson,  10~() 

Mobley  r.  Clark,  1019 

V.  Leophart,  10U5 

Mohr  c.  Bost.  &  Alb.  R.  R.  Co.,      462 

v.  Chic.  &  N.  W.  R.  R.  Co.,  566 

Moline,  Ex  parte,      769,  770,  781,  782 

Mollett  V.  Brayne,  646 

!\ronell  V.  Smith,  180 

Monroe  v.  Connei-,  525 

Montelius  o.  Charles,  816 

Montgomery  v.  Birge,  34(i 

Montgomery  Co.  B'k  v.  IVIarsh,       895 

Montgomery,  etc.,  R.  R.  Co.  v. 

trebles,  740 


Moody  V.  Mack, 


739,  1009 


XXX 


INDEX    TO    CASES    CITED. 


Sectfon. 

Moore  v.  Coats,  li575 

V.  Gammel,  1251 

V.  The  John  T.,  231 

More  V.  Massini,  428 

Moreau  v.  Brauham,  211 

V.  Detchemendy,         119,  211 

Morehead  v.  Gilmore,  80 

Morgan  v.  Bank  of  Louisville,       988 

V.  Dibble,  570 

V.  Jones,  1272 

V.  Btell,  671 

V.  Woods,  1318 

Morrill  v.  Moultou,  2,  1238 

Morris    c.  Bailey,  1140 

V.  Hauser,  1282 

V.  Hogle,  1075 

V.  Martin,  671 

V.  Rcxford,  72 

V.  Shryock,  465,  474 

Morris  &  Essex  R.  R.  Co.  v. 

Ayers,  568 

Morrison  v.  March,  278 

V.  McCartney,  1009 

Morrow  v.  Commonwealth.  1281 

t).  Weed.         1160,1161,1370 

Morton  v.  Robards,  232,  2(i6,  273 

V.  Westcott,  888,  902 

Moses  V.  Boston  &  3Ie.  R.  R.,  Co., 

532,  533,  569,  576 

V.  Ela,  946 

Moshier  v.  Reding,  581,  583 

Mosley  v.  Hatch,  677 

Mott  V.  Clark,  2()'2 

V.  Lansing,  1214 

Mottram  v.  Heyer,  459,  469 

Moulton  V.  de  ma  Carty,  1319 

V.  Mason,  1275 

Mount  Pleasant  B'k  v.  McLeran, 

697,  712 

IVIount  Vernon  B'k  v.  Iloldeu,       821 

Mowatt  V.  Howland,  513 

Mueller  v.  Bates,  1378 

V.  Engeln,  77,  336 

Mulford  V.  Griffin,  486 

Mullen  V.  Higgins,  1161 

MuUer  v.  Hoyt,  1259 

Mullikin  v.  Graham,  7,  28,  36 

Muilins  v.  Sparks,  1345 

Mulvey  v.  Carpenter,  1205 

Mumma  v.  McKee,  1227 

Munn  V.  Baker,  539,  550 

V.  Baldwin,  882 

■».  Commission  Co.,  663 

Murchison  v.  jMcLeod,  1260 

Murray  o.  Armstrong,  586 

V.  Ballou,  34 

V.  Blatchford,  366 


Sbction. 

Murray  «.  Finster,  341 

V.  King,  1397 

V.  Larduer,  80 

V.  Lylburn,  371,  431 

V.  Mumford,  496 
Musgrove  v.  Bonser, 

4,  7,  12,  126,  246,  250 

Musick  V.  Barney,  12,  133 

Mussey  v.  Raynor,  388,  397 

Mussina  ».  Moore,  1083 

Myers  v.  Overton,  1160 

V.  Ross,  676,  694 

Nalle  V.  Fenwick,  1101 

Naron  v.  Gwin,  1375 

Nash  «.  Gilkeson.  1321 

V.  Harrington,  972,  991 

Nashville  Bank  v.  Bennett,  885 

Nashville  R.  R.,  Co.  v.  Elliott,        674 

National  Bank  v.  Marr,  986 

V.  Norton,  683 

National  Exch.  Co.  v.  Drew,  654 

Ins.  Co.  V.  Chamber  of 

Commerce,  1881 
Security  B'k  v.  Cushman, 

682 

Neal  V.  Taylor,  794,  846 

V.  Wood,  933 

Neale  v.  Hagthrop,  310 

Nealley  v.  Greenough,  1262 

Nelson  v.  Allen,  327 

V.  Pierce,  1119 

V.  Sims,  17 

V.  Wade,  176 

Nevan  v.  Roup,  1253 

Nevius  V.  Bank,  821,  829,  846 

Newborn  v.  Just,  558 

Newcomet  v.  Brotzman,  521 

New  England  Car  Spring  Co.  v. 

Union  Rubber  Co.,  1309 

V.  Vargos,  464,  477 

Newhall  v.  Pierce,  299,  305 

New  Haven  Co.  B'k  v.  Mitchell,    401 

New  Jersey  Steam  Nav.  Co.  v. 

Merchants'  Bank,  559 

Newlin  v.  Newlin,  1321 

Newman  v.  Chapman,  338,  357 

■>\  Cincinnati,  1055 

Newmarch  v.  Clay,  486.  490,  492 

New  Orleans  Sav.  B'k  v.  Harper,  997 
Newsome  v.  Coles,  483,  487,  513 

Newton  u.  State  Bank,  1094 

Newton's  Heirs  v.  State  Bank,      1094 
New  Vork  Cen.  Ins.Co.  v.  Kelsey,  1178 


INDEX    TO    CASKS    OITED. 


XXXI 


Sbction 
New  York  Cent.  Ins.  Co.  v.  Nat. 

Prot.  Ins.  Co.,  088 

New  York  Life  Ins.  Co.  v.  Cut- 
ler, 294,  299 
Nichols  V.  Boston,  V6VS 
Nicholson  v.  Gouthit,  952,  991 
V.  Marders,  897 
Nixon  V.  Palmer,  663,  667 
Noble  V.  Thompson  Oil  Co.,  432 
Noel  V.  McCrory,  602 
Norcross  v.  Widerery,  278 
Normanville  «.  Pope,  1390 
Norris  v.  LeNeve,  688 
North  V.  Turner,  428 
North  Bank  v.  Abbott,  1397 
North  River  Bank  v.  Aymar,  660,  681 
North  Whitehall  In.  Re.  1132 
Northern  v.  Williams,  563 
Northyi).  Field,  469 
Northrop  v.  Syracuse  B.  &  N.  Y 


Orvis  V.  Newell, 
Osborn  o.  Cloud, 
Osborne  v.  Moucure, 
Ostrander  v.  Brown, 
Oswald  V.  Grey, 
Oswego  Bank  «.  Knower, 
Otis  v.  Dorgan, 
Owens  V.  Kinsey, 
Oxford  Bank  v.  Haynes, 

P. 


E.  R.  Co.,  576 

Northrup  v.  Shephard,  1371 

Norton  v.  Birge,  347,  357 

V.  Eastman,  386,  390 

V.  Heywood,  1272 

V.  Lewis,  1397 

V.  Pickering,  1004 

V.  Rose, 

Norway  Plains  Co.  v.  Boston 

&  M.  R.  R.  Co.,  564,  566 

Noyes  V.  Harr,  167 

Nute  v.  Nute,  17,  246 

o. 

Oakes  v.  Munroe, 
Oats  V.  Walls, 
Ogden  v.  Cowley, 

V.  Dobbin, 

V.  Haven, 

V.  Walters, 
Oglesby  v.  Steamboat, 
Olcott  V.  Robinson,  1101 

Olendorf  y.  Swart/,  904 

Oliver  v.  Bank  of  Tennessee, 

1004,  1005 

V.  Harvey,  1220 

V.  Piatt,  312 

O'Neill  V.  New  York  &  Hudson 

River  R.  R.  Co.,  532 

Oppenheimer  w.  U .  S.  Ex.  Co.,        554 
Orange  Co.  Bank  «.  Brown,  542 

Orear  v.  McDonald,  1011 

Oriental  Bank  v.  Blake,  7(i3 

Ormsby  v.  Town  of  Granby,  1 222 

OrndorffB.  Adams'  Ex.  Co.,  558 

Orr  V.  McQinness,  1009 


Packard  v.  Getman, 
Packwood  v.  Gridley, 
Pagett  «.  Curtis, 
Paine  y.  Mooreland, 
Palgrave  v.  Windham, 
Palmer  v.  Bates, 
Papin  V.  Buckingham, 
Parke  v.  Chadwick, 
Parker  i\  Hill,  119,  141, 

V.  Kane, 

V.  Header, 

V.  Middlebrook, 

V.  Osgood, 

V.  Sedwick, 
Parkin  v.  Carruthers, 
43g:Parkist  «.  Alexander, 
Parks  V.  Jackson, 
Parmelee  v.  Catherwo(xl, 
Parret  v.  Shaubhut, 
Parsons  v.  Loyd. 
Parry  i\  May, 
Parry  v.  Woodson, 
Partridge  v.  Davis, 
y.  Smith, 
Pate  V.  McClure, 
Patience  o.  Townley, 
Patrick  v.  Davis, 
Patterson  v.  Hubbard, 
Patton  V.  Ins.  Co., 


631 

153 

1397 

717 

264 

1048 


956  Paul  V.  Christie, 


Payne  v.  Cave, 
V.  Crane, 
V.  Flournoy, 
V.  Patrick, 
Paytona,  The, 
Peabody  v.  Fenton, 

V.  Hamilton, 
v.  Phelps, 
Peacock  /;.  Purcel, 
V.  Rhodes, 
I'eak  0.  North  StaflFordshire  Railw. 

Co.  560 

Peaisc  V.  Hooper,  1278 


8k(.'tion. 

208 
1188 

780 

574 
1138 

946 
1084 
1224 

413 


453 

88 

1136 

1160 

1387 

297 

1191 

10,  19 

142,  143 

10,  16 

1300 

67 

14 

1300 

483,  517 

113 

363 

76 

119,  137 

1159 

1273 

1318 

420,423 

161,  183 

956 

982 

1109 

1226 

687 

748 

381 

394 

87 

714 

573 

24 

1357 

1146 

721 

80 


V. 

Pearson  ». 


V. 


Bradley, 
Crallan, 


llOJi 
823 


xxxu 


INDKX    TO    0ASE8    C'lTKD. 


PerrsoD  v.  Daniel, 

V.  Lovejoy, 
Peet  V.  Zanders. 
Peltou  c.  Rensselaer  v.  Saratoga 

R.  R.  Co.,  570 

Pendleton  v.  Commonwealth,       1263 
V.  Fay,  10,  22 

Penn.  Railw.  Co.  v.  McClosky,       558 
Pennell  v.  Monroe,  1115 

Penny  v.  Crane  Bros.  Manf.  Co., 
Penobscot  R.  R.  Co.  v.  Weeks, 
People  V.  Bacon, 

V.  Bernard, 

V.  Burton, 

V,  Herman, 

V.  Highway  Comr's, 

V.  Holbrook, 

V.  Huber, 

n.  Tallman, 

V.  Whyler, 
People's  Bank  v.  Keech, 
Pepper's  Appeal, 
Perkins  v.  Wash.  Ins.  Co., 
Perrin  v.  Reed, 
Perrine  v  Miller, 
Perry  v.  Green, 

V.  Siter, 
Peters  v.  Goodrich, 

t'.  Hobbs, 

V.  Newkirk, 

«.  St.  Louis  &  C.  R.  R 


SaCTION.]  Skctiox. 

7  Pitcher  o.  Barrows,  515 

11 981  Pitman  v.  Sofley,  29 

990  Pittsbursh  <fc  C.  R.  R.  Co.  v.  El- 
liott',' 1219 
Piatt  V.  Robinson,  1190 
Pleasants.  Benson,  624 
Ploughbov,  The,  67 
Plumb  V.  Fluitt,  8,  37 
Plumer  v.  Robertson,  297 
Polk  0.  Spinks,  98:! 
Pollard  r.  Somerset  Mut.  Fire 

Ins.  Co.,  4:!2 

c.  Wegener, 

1160,  1345.  1371,  1372, 
Pomerov  c.   Betts, 

1031,  1054,  1060,  1084,  1136 
V.  N.  Y.  &  X.  H.  R.  R. 

Co.,  1306 

V.  Stevens,    14,  245,  274 

Pons  n.  Kell»y,  991 

Pope  0.  Headen,  llO.-i 

Porter  v.  Chicago  &  R.  I.  R.  R.,  566 


894 

1138 

1143 

1352 

1358 

1145 

1119 

1262 

1031 

1139 

1123 

759 

117 

653 

192 

1314 

943 

1221 

10 

928,  985 

1138 

Co., 


1161 

Peto  V.  Hammond,  46 

Pettibone  v.  Griswold,  179 

Phelan  c  Moss,  80 

Phelps  V.  Hunt,  1234 

Philipe  V.  Harberlee,  913 

Phillips  V.  Alderson,  862 

0.  Bowen.  1230 

Philliskirk  v.  Pluckweli,  728 

Phip.son  i\  Ivneller,  939 

Pickard  v.  Perley,  616,  61H 

i\  Polhi'mus,  1247 

Pickering  v.  Bank,  652,  653 

».  Busk.  70,  652,  653 

Pier  V.  Carr,  644 

V.  Heinrichoflen,  1397 

v.  Pendar,  846,  854 

V.  Richardson,  1109 

V.  Taylor,  20 

Pigott  ®.  Snell,  1349,1372 

Pike  V.  Armstead,  253 

®.  Galvin,  21  fi 

Pillow  V.  Hardeman,  926 

Pilmer  v.  Branch  of  State  Bank,  122 

Pindall  v.  Trevor,  377 

Pindell  v.  Maydwell,  348 


B.  Cole,  246,  251 

0.  Kemball,  935 

r.  Pillsbury,  1235 

c.  Rayworth,  975 

0.  Sevy,  245 

Porthouse  v.  Parker,  751 

Portwood  c  Wilburn,  1152 

Potier  V.  Barclay,  1257 

Potter  V.  Sanders,  55,  383 

Potts  V.  Bell,  9S(» 

Powell  V.  Myers,  552 

V.  Penn.  R.  R.  Co.,  55S 

Powers  V.  McFerran,  217 

Prather  v.  Pritchard,  124(i 

Pratt  t\  Page,  489,519 

V.  Richards,  643 

V.  Tinkom,  1103,  1133 

Prentiss  i\  Danielson,  943,  963 

V.  Garland,  420,  422 

■0.  Sinclair,  485,  515 

Prcscott  V.  Heard,  278 
President  &c..  of  Connersville  v. 

Woodleigh,  1254 

Presley  v.  Anderson,  1375 

Trice  v.  Jones,  72 

V.  McDonald,  17 

V.  Powell, 

«.  Young, 

Pricket  c.  Ritter, 

Prideaux  v.  Collier, 

Priest  V.  Rice, 

Priudle  v.  Anderson, 

Prmgle  v.  Dunn, 

V.  Phillips, 


Pritchett  v.  Sessions, 


571,  573 

991 

611 

1014 

235 

585,  648 

124, 137,  149,  680 

87 

687 


INDEX    TO    CASES    CITED. 


XXXlll 


Skction. 

Pugsley  V.  Aiken,  582 

Purcluise  v.  Mattison,  1009 

Pursell  V.  Long,  1225 

Pursley  v.  Hays,  1160,  1341 

Q. 

Queen,  The,  v.  Elworthy,  1261 

Quiggin  V.  Dufi",  574 

Quirk  V.  Thomas,  207 

K. 


Railroad  Company  v.  Brown,       1382 

V.  Manuf.  Co.,  531 

Ralls  V.  Graham,  219 

Ralston  v.  BuUilts,  1017 

Ramdulollday  v.  Darieux,  1017 

Ramsey  ti.  Strobach,  (i51 

Rand  v.  Dodge,  1231 

Randall  v.  Falkner,  1161 

V.  Silverthorne,  10,  300 

V.  Smith,  916 

Randolph  v.  N,  J.  West  L.  R.  R. 

Co,  97 

Rankin  «.  Childs,  395,  399 

P.  Dulaney,  1374,  1375 

Ransom  v.  Loyless,  499 

Ransome  v.  Mack, 

840,  841,  850,  904,  921 

Rape  V.  Heaton,  1371,  1372 

Rapelye  v.  Bailey,  389 

Rariton  Water  Power  Co.  v. 

Veghte,  10 

Rathburn  v.  Acker,  1334 

Rawson  v.  Holland,  57: 

Ray  V.  Roe,  34' 

V.  Smith,  946,  948 

Raymond  v.  Squire,  432 

Reab  v.  Moor,  1285 

Read  v.  French,  1338 

Reading  v.  Ford,  116 

Rector  v.  St.  Louis  Circ.  Ct.,  1211 

Redpath  v.  Roberts,  644 

Reed  v.  Hawley,  636 

V.  Kemp,  12.*^ 

V.  Tyler,  1376 

Reeder  v.  Barr,  311 

V.  Holcomb,  1358 

Reed's  Appeal.  672 

Ree.se  v.  Beck,  1248 

Kegina  v.  Hankins,  1286 

Reichert  v.  McClure,  234 

Reid  V.  Payne,  883,  922 

Reigartv.  White,  421 

Reilley  v.  Smith,  506 

Relfe  V.  Valentine,  1154 

o-x- 


Skction. 

Remer  v.  Downer,  842,  883 

Rennick  ■«.  Robbins,  715 

Reno  V.  Hogan,  558 

Renshaw  v.  Triplett,  717 

Requa  v.  Collins,  923 

Rex  V.  Haworth,  1261 

V.  Holland,  1387 

Reynolds  v.  Applemau,  840 
V.  B.  65  M.  R.  R,      466,  480 

V.  Harris,  1096 

V.  Wilson,  1088 

Rhett  0.  Poe,  732 

Rhoades  v.  Delaney,  1358 

V.  Selin,  1278 

Rhode  V.  Proctor,  991 
Rhodes  v.  Louisville  «&  Nash. 

R.  R.  Co.,  558 
Rice  V.  Boston  &  Worcester  Rail- 
road Corp.,  567 
Rich  V.  Roberts,  194 
V.  Starbuck,  1220 
Richards  v.  M.  S.  &  North.  Ind. 

R.  R.  Co.,  566 
Richardson  v.  Burlington  &  M. 

R.  R.  Co ,              ^  1235 

V.  White,  374 

V.  Wicker,  228 

Richmond,  Tlie,  575 

Riddle  v.  Coborn,  73 

V.  Mandeville,  706 

Ridgely  v.  Stillwell,  613 

Riggs  V.  Boylan,  153 

Right  V.  Beard,  593 

V.  Cuthell,  616,  697,  700 

V.  Darby,  607 

Righter  v.  Forrester,  232,  266 

Rigs  V.  Cage,  671 

Rigsbee  r.  Bowler,  1159 

Riley  v.  Home,  542,  558 

V.  Nichols,  1031),  1037 

Ringold  V.  Patterson,  1094 

Ringgold  V.  Bryan,  60 

V.  Waggoner,  10,  25 

Rinkle  D.  Hogan,  1211 

Ripple  V.  Ripple,  28 

Rising  V.  Stannard,  608 

Risley,  Succession  of,  433 

Ritter  v.  Offutt,  1157 

Rivers  v.  Walker,  1321 

Roach  V.  Barnes,  1141 

Robb  V.  Mudge,  499 

V.  Stark ey,  1270 

Roberts  v.  Bourne,  205,  206 

V.  Mosley,  16 

V.  Stanton,  27 

v.  Taft,  887,  902 

Robins  v.  Gibson,  1005 


XXXI V 


INDEX    TO    OASES    CITED. 


Robinson,  Estate  of 

11.  Chittenden, 

V.  Int.  Life  As.  Soc. 

V.  Williams, 

Kobison  v.  Goswold, 

Robson  V.  Bennett, 

Rochfort  i\  Robertson, 

RockendorfF  v.  Taylor's  Lessee, 
llOi 

Rockwell  V.  Bradley, 


Section. 
5G3 


748 
180 
671 
817 
1181 

1116 


S. 


Saco  National  Bank  v.  Sanborn, 
Sager  v.  Portsm.  S.  &  P.  &  E. 

R.  R., 
Sailor  v.  Hertzog, 
Salisbury  v.  Remick, 

V.  Sands, 
Sallee  v.  Hays 


923 


Roe  V.  Pierce, 


600  Saitus  V.  Everett, 


100 

532 

718 

771 

571,  574 

1263 
710 
997 

1263 

1346 
(i57 
r,6i! 
840 


Rogers  v.  Burchard, 

V.  Custauce, 

I).  Hackett, 

'0.  Hoskins, 

V.  Jones, 

V.  McElhone, 

V.  Mutton, 

V.  Stephens, 

V.  West, 
Rogerson  v.  Hare, 
Rohde  V.  Proctor, 
Rome  R.  R.  v.  Sullivan, 
Rose  V.  l^ewis, 
Roslier  v.  Kieran, 
Ross  V.  Bedell, 
V.  Bruce, 
Rosseau  v.  Gayarre, 
Rossiter  v.  Rossiter, 
Rothschilds  v.  M.  C.  R.  R.  Co. 
Routh  V.  Robertson, 
Rowan  v.  Adams,  27 

V.  Lytle,  59(1 

Rowe  V.  Tipper,  795.  797 

Rowell  V.  Klein,  1378 

Rowley  ».  Home,  546 

V.  Howard,  1362 

Rowls  V.  Deshler,  472 

Kucker  v.  Donovan,  475 

V.  Hiller,  1004 

Rudy®.  Wolf,  421,424 

Rugely  V.  Davidson,  739 

Ruukle  V.  Hogan,  1211 

Runquist  v.  Ditchell.  654 

Runyan  v.  McClellan,  240 

Runyon  v.  Montfort,  906 

Rupert  V.  Mark,  7,  217,  294 

Rushton  V.  Aspenwall,  1401 

Russell  V.  Buck,  894,  401 

V.  Clark,  386,  389 

V.  Dyer,  1097 

V.  Langstafle,  9!)1 

V.  Perkins,  389,  401 

v.  Petrie,  17 

Russell's  Appeal,  113 

Rutherford  v.  Geddes,  124 

Ryan  v.  DriscoU,  1161 


622,  697,  699,  700  Sample  v.  Martin, 


205,207'Sampson  «).  Ohleyer, 

1282  Samuels  v.  Shelton, 

967'8anborn  v.  Little, 

TiSandford  v.  Handy, 

35,  273;Sandilands  v.  Marsh, 

1201  Sanford  v.  URTvej, 

lo9;'nSanger  v.  Craigue, 


558 

278 

956 

1353 

1084 

67 

420,  422 

374 

348 

79,  431 

653 

527 

633 

159,  174 

1110 


Sargent  v.  Bean, 
Sargeant  v.  State  Bank  of 

Indiana,  1085 

Saunders  v.  Deheu,  58 

Saunders  v.  Smith,  1190 
Savings,  &c.  Society  v.  Thomp- 

osn,  1071 

Sawyer  v.  Adams,  160 

V.  Joslin,  464 
r.  North  American  Life 

Ins.  Co.,  1304 

Sayer  v.  Frick,  757 

Sayles  r.  Davis,  1373 

Scales  V.  Aves,  1111 

Scarborough  v.  Harris,  1017 

Schell  V.  Lei  and,  1032 

V.  Stein,  164 
Schimmelpenich  v.  Bayard,     660,  661 

Schlater  v.  Wiupenny,  523 

Schnell  v.  Chicago,  1075 

Schonberg  v.  Cheny,  383 

Schuchardt  v.  Hall,  1004 

Schutt  V.  Large,  63 

Schuyler  v.  Lesffett,  586 

V.  Smith,  602 

Schwabacker  v.  Reilly,  1295 

Scotield  V.  Eichelberger,  981 
Scorpion  S.  M.  Co.  v.  Marsano, 

1030,  1309,  1355 

Scott  V.  Bullion  Mining  Co.,  1249 

V.  Colman,  377 

V.  Colmesnil,  493 

V.  Gallagher,  299 

V.  Greer,  942 

V.  Jones,  1263 

I'.  Lifl'ord,  716,735 

V.  Scott,  1251 

Scull  «.  Mason,  936 

Scully  V.  ]\lurray,  •  613 


INDEX    TO    CASKS   CITED. 


XXXV 


Section. 

Seabnry  v.  Hiingford,  1024 

Seacord®.  Miller,  JMO 

Sears  v.  Van  Duscn,  417 

Seavcr  v.  Fitzgerald,  103l» 

Selffl.  Maddox,  348 

Selking  v.  Hebel,  113 

Sehvay  v.  Halloway,  532 

Sergeant  ®.  Ingersoll,        w  10,18 
Session  v.  Western  \\  R.  Corp.,       567 

Setter  v.  Alvey,  220 

Sexton  ®.  Rhames,  1 031 .  U 1 !) 

Seybell  v.  Nat'l  Cur.  Bank,  80,  8'J 

Seymour  v.  Newton,  464,  477 

Sharp  V.  Bailey,  997 

V.  Maguire,  348 

Sharpe  v.  Kelley,  598 

Shaw  V.  Neal,  984 

V.  Padley,  348 

V.  Poor,  129 

V.  Wilshire,  189 

Shawban  v.  Lali'en,  1160,  1161 

Shaylor  v.  Mix,  8:30,  850 

Shed  V.  Brett,  781,  882 
Shelburne  Falls  Bank 

V.  Townsley,  846 

Sheldon  v.  Benham,  846 

V.  Chapman,  940 

V.  Cox,  672 

V.  Wright,  1077, 1160 

Sbepard  v.  Giddings,  1272 

«.  Hawley,  758 

Sberfy  v.  Argenbright,  146 

Shimmin?).  inman,  1110 

Shirley  v.  Fellows,  1003 

V.  Hagar,  1159 

Shirras  «.  Caig,  272 

Shoemaker  v.  Mechanics'  Bank,    870 

Shotwell  V.  Harrison,  270 

V.  Rowell,  1185 

Shove  V.  Lansen,  169 

Shreve  v.  Dulany,  1286 

Shults  xi.  Moore,  124 

Shultz  V.  Depuy,  '     1387,  1397 

Shumate  v.  Rcuvis,  273 

Shurlds  V.  TIIhod,  504,  506 

Sibley  v.  Lefliiigwel],  14,  274 

Sidwell  ■».  Worth iugton,  348 

Sigerson  v.  Mathews,  964 

Sigourney  v.  Munn,  26,  320 

Silsby  ?).  Allen,            ■  586 

Simcock  v.  First    Nat'l   B'k    of 

Emporia,  1358 

Simington  v.  Kent,  1282,  1290 

Simonds  v.  Strong,  504 

Simons  «.  Gardner,  1386 
V.  Great  West.  Railw.  Co.,  56 

Simpson  v.  Burch,  1038 


Simpson  v.  Knight,  1138, 1144 

V.  Mundee,  128 

V.  Terney,  799 

Sinclair  v.  Stevenson,  1277 

Skiffen  v.  Wray,  479 

S.eat «.  Fagg,  558 

Slocomb  V.  Lizardi,  752 

«.  Powers,  1156 

Small  V.  Browder,  432 

Smedes  «.  Utica  Bank, 

714,  786,  829,  846 

Smith  V.  Anthony,  b95,  399 

v.  Bainbridge,  416 

V.  Beckett,  991 

V.  Brown,  367,  373 

».  Curlee,  956 

V.  Home,  558 

V.  Ide,  386,  401 

V.  Little,  781 

V.  Littlefield,  596 

V.  Lockbridge,  936 

v.  Mullet,  803 
V.  Nashua  &  L.  R.  R., 

570,  571,  574 

V.  Pattison,  1384 

V.  Randall,  109;j 

«.  Roach,  798 

V.  Sparrow,  677 

V.  Smith,  439 

V.  Stewart,  593 

V.  Thatcher,  744 

V.  Trabue  343 

V.  Wells'  Admr'3,  1197 

V.  Whitmg,  839 

Smith's  Appeal,  688 

Smout ».  ilbery,  671 

Snee  v.  Prescot,  477 

Snow  V.  Perry,  660 

Snydacker  v.  Brosse,  1296 

Snyder  v.  Sponable,  680,  684 

Soeding  v.  Bartlett,  1399 

Somes  V.  Brewer,  241 

Sorrel  v.  Carpenter,  348 

Soule».  Chase,    1061,  1067,  1078,  1080 

Southern  v.  Grim,  515 

Southern  &  Atlantic   Tel.  Co.,  v. 

New  Orleans,  etc.,  R.  R  Co., 

1306,  1308 

Southwick  V.  McGovern,  515 

Sowards  v.  Pritchett,  1104 
Spade  V.  Hudson  River  Railw.,      532 

Spalding  v.  Butts,  348 

'  «.  Krutz,  823 
Spaulding  v.  Ludlow,  &c.,  Mills,  1245 

Spear  7;.  Ditty,  1106 

Speck  i\  Riggin,  16 

Spccht  i\  Delroit,  1127 


XXXVl 


INDEX    TO    CASES    CITED. 


Skotion.I 

Speer  v.  Bishop,  530 

V.  Evans,  164 

Spencer  v.  Bank  of  Salina,  917 

V.  Hall,  1181 

V.  Harvey,  946 

t).  Wilson,  671 

Spotford  V.  Weston,  30,  245,  277 

Sponer  V.  Gardiner,  1012| 

V.  Thompson,  664 

Spiers  v.  Halstead,  10o4 

Sprague  v.  Quin,  585 

i).  Tyson,  918 

Spurlock  V.  Union  Bank,  957 

Stafford  v.  Ballon,  lo; 

V.  Low,  ;^98 

V.  Yates,  706 1 

Stainback?}.  Bank  of  Virginia,      657| 

Stainor  v.  Tysen,  660 ! 

Stanley  ».  Chamberlain,  31 

Stansell  v.  Roberts,  2251 

Slanto  V.  Blossom,  705,  1027 

Staples  V.  Okines,  lOOo] 

Starkweather  v.  Morgan,  1380, 

State  V.  Baird,  1210 

V.  Bassett,  1254 

V.  Brandon,  1210 

V.  First  Nat.  Bank,  1202,  1329 

V.  Gurnee,  1260 

V.  Hannibal  &  St.  Joe.  R.  R. 

Co.,  1311 

V.  Mayberry,  1262 

State  Bank  v.  Brown,  348 

V.  Cason,  348 

V.  Marsh,  1363 

V.  Slaughter,  759 

State  Mut.  Fire  Ins.  Co.  v.  Roberts, 

446 

Stedman  ■«.  Gooch,  851 

Steele  v.  Townsend,  553 

Steinbach  «.  Lesse,  1358 

Steinlei).  Bell,  1044 

Stephens  v.  Thompson,  1234 

Stephenson  v.  Dickson,  805 

V.  Primrose,  943 
Sterling  Bridge  Co.  v.  Baker,  672,  677 


Section. 
Stewart  v.  Sonneborne,  503 

Stewton  V.  Cushe,  1394 

Stidham  v.  Matthews,  310 

Stillwell  V.  Empire  Fire  Ins.  Co., 

1307, 1308 
Stitt  V.  Huidekopers,  1279 

Stivers  v.  Thompson,  1188 

atix  V.  Matthews,  910,  95  > 

St.  John  V.  Roberts,  740 

Stockdale  v.  Keys,  85 

Stockett  V.  Taylor,  24 

Stockton  V.  Hall,  434 

Stocks  V.  Dobson,  431 

Stoddard  v.  Myers,  358.  377 

Stone  V.  Connelly,  351 

V.  Cook,  304 

Stoughton  V.  Pasco,  180 

Stowe  V.  N.  Y .,  Boston  &  Prov. 

R.  R.  Co.,  563 

Strang  v.  Allen,  1204 

Strong  V.  Taylor,  72 

Struver  v.  Ocean  Ins.  Co.,  1328 

Studebaker  v.  Cody,  420,  422 

Sturgis  V.  Fay,  1343 

Sturtevant  v.  Orser,  4')6 

Stuyvesant  v.  Hall,  203,  361 

V.  Hone,  203,  361 

Sueterlee  v.  Sir,  1040 

Suit  «.  Woodhall,  67. 

Summerville  v.  Han.  &  St.  Joe 

R.  R.  Co.,  668 

Sumner  «.  Bryan,  268 

Sussex  Bank  v.  Baldwin, 

715,  795,  805.  817.  1021 
Sutcliffe  V.  McDowel,  1009 

Swall  V.  Clarke,  84,  91 

Swan  V.  Hodges,  9(>0 

Swarthout  v.  Curtis,  10,  20 

Sweet  V.  Sprague,  1072 

Swift  V.  Tyson,  80,  84 

Swigert  v.  Bank  of  Kentucky,        257 
Sykes  v.  Halstead,  671 

Sylvester  v.  Downer,  1388 

T. 


Sterry  v.  Arden, 

10,  38 

Stevens  v.  Curry, 

1174 

Talbot  V.  Gay, 

388,  413 

V.  Goodenough, 

511 

Tall  man  v.  White, 

1109 

V.  Hampton, 

134,  13.) 

Talman  «.  Barnes, 

1328 

V.  Lynch, 

975 

Tardy  v.  Boyd, 

985 

V.  Stevens, 

434 

Tate  V.  Stooltzfoods, 

127 

Stward  v.  Pettigrew, 

1094 

Taunton  Bank  v.  Richardson 

, 

Stewart  v.  Eden, 

763 

942, 1397 

V.  Harding, 

631 

Taylor  v.  Doe, 

238 

V.  Hibernia  B'k'g 

Ass'n,  1358 

V.  French, 

946,  951 

v.  Kennett, 

705 

V.  Hughes, 

676 

V-  McSweeny, 

1J)3 

V.  Lowenstein, 

246,  278 

INDEX    TO    CASES    CITED. 


XXXV 11 


Taylor  v.  Mavis, 
V.  Ross, 
V.  Snyder, 
V.  Stibbert, 
V.  Young, 
Tebbets  v.  Dowd, 
Tefft  V.  Munson, 


Section 

203 

38G,  30G 

991 

55,  278,  279,  318 

1020 

956,  960,  969,  971 

216 


Terrel  v.  Andrew  County,  147, 149, 167 
Texas  v.  White,  146 

Thackery  v.  Blackett,  991 

Thomas  v.  Boston  &  Providence 

R.  R.  Co.,  566 

V.  Davis,  1230 

V.  Kennedy,  229 

Thomason  v.  Frere,  497 

Thompson  v.  Cartwright,        688,  690 
V.  Whitman,  1379 

V.  Williams,  738,  831 

Thorington  1).  Smith,  146 

Thornton  v.  Knox,  330 

V.  Wynn,  956 

Thorpe  «.  Peck,  781 

Throckmorton  v.  Prince,  150,  154 
Thunder  v.  Belcher,  600 

Thurber  v.  Dwyer,  586 

Tiffin  V.  Millington,  1209, 1211 

Tigress,  The,  471,  477 

Tillinghast  v.  Champlin,  26 

Tilton  V.  Hunter,  205,  210,  223 

Timras  v.  Delisle,  844,  883 

Tindal  v.  Brown,  702,  703,  785 

Titchburne  v.  White,  044 

Todd  V.  Edwards,  846 

Toledo,  &c.  R.  R.  Co.  v.  Butler,  1381 
Tombeckbee  Bank  ».  Dumcll,  483 
Tompkins  v.  Wiltberger,  1372 

Torrey  v.  Foss,  998 

Towdy  B,  Ellis,  1327 

Towle  V.  Leavitt,  660,  661 

Townsend  v.  Lorain  Bank,  840 

V.  Tallent,  1053,  1055 

Tracy  v.  Steam  Faucet  Manuf. 

Co.,  1171 

Traders'  Ins.  Co.  v.  Roberts,  446 

Train  v.  Jones,  386,  394, 402 

Travis  v.  Brown,  1233 

Trefts  «.  King,  25,  40 

Triebsr  v.  Com'l  B'k  of  St.  Louis,  80 
Trimble  v.  Thorn,  969 

Triplett  v.  Hunt,  717| 

Tripp  V.  DeBow,  1209 

Trot  V.  McGavock,  1097 

True  V.  Collins,  924 

V.  Harding,  386,  401 

Trull  V.  Bigelow,  241 

Tucker  v.  Adams,  593 

V.  Baker,  625 


Skction. 

Tucker  v.  Harris,  219 

V.  Tilton,  271 

Tullis  V.  Scott,  1374 

Tunno  v.  Lague,  714,  979 

Tunstall  v.  Walker,  907 

Turnbull  v.  Bowyer,  1028 

Turner  v.  Babb,  377 

V.  Leach,  795,  797 

Tuttle  V.  Jackson,  10,  273 

Tybee,  The,  573,  575 

Tyly  V.  Morrice,  543 

u. 

Underwood  v.  Jeans,  1097,  1098 

V.  Lord  Courtown,       104 

Union  Bank  v.  Grimshaw,      711,  956 

V.  Hyde,  935 

Union  Steamboat"  Co.  v.  Knapp,     571 

United  States  v.  Grossmayer,  748,  980 

V.  Hooe,  180,  272 

V.  Winchester,  1257 

Bank  v.  Goddard,      795 

V.  Southard, 

957,  973,  1021 
Ins.  Co.  V.  Shriver, 

113,  354 
Uther  V.  Rich,  80 

V. 

Valentine  v.  Havener,  239 

Valk  V.  Gaillard,  750 

V.  Simmons,  1009 

Van  Aken  v.  Gleason,  262 

Vfiudiver  v.  Roberts,  1372 

Vanduyne  v.  Vreeland,  54 

Vanhoesen  v.  Van  Alstyne,  738 
Van  Keuren  v.  Central  R.  R. 

Co.  of  N.  J.,  299 

Van  Rensselaer  v.  Clark,  199 

Van  Vechten  v.  Pruyn,  852 

Van  Wart  v.  Woolley,  742 

Van  Wickle  v.  Downing,  957 

Van  Wyck  v.  Hardy,  104") 

V^attier  v.  Hinde,  10 

Vaughan  v.  Greer,  97 
V.  Tracy,               16,  275,  276 

Veazie  v.  Parker,  207 

Verner  v.  Switzer,  541 
Vernon  v.  Manliattau  Co.,        505,  511 

Viele  V.  Germania  Ins.  Co.,  956 

Villard  v.  Robert,  119 
Vmal  V.  Richard.son,                 415,  418 

Virden  v.  Ellsworth,  416 

Voorhecs  «.  Alice,  936 

Voorhcis  v.  IJank  of  U.  S.,  1085 


XXXVlll 


INDEX    TO    OASES    OITED. 


Section. 

Vulliamy  «.  Noble, 

4.96 

Vyse  V.  Wakefield, 

418,  430 

w. 

Waffle  V.  Goble, 

1033 

Wagner  v.  Tice, 

1189 

Walker  v.  Bank  of  the  State,           702 

V.  Forbes, 

395,  397,  426 

V.  Jackson, 

537,  540 

V.  Laverty, 

972 

v.  Rogers, 

957,973,  1017 

V.  Scott, 

1199,  1200 

V.  Sharpe, 

Gil,  (540 

V.  Smalhvood, 

348 

v.  Stetson, 

911 

V.  Transp.  Co., 

553 

V.  Turnstall, 

907 

Wall  V.  Bry, 

935 

Wallace  v.  Agry, 

822 

V.  Moody, 

127 

Wallen  v.  Buff.  ' 

343 

Walter  v.  Haynes, 

924 

Walters  v.  Brown, 

873 

V.  Munroe, 

943.  963 

Walwyn  v.  St.  Qiiiutin, 

1001,  1004 

Wanzer  v.  Howland, 

1371 

Ward  V.  Henry, 

418 

V.  Smith, 

748 

Warder  v.  Tucker, 

975,  1017 

Wardin  v.  Adams, 

237 

Wardwell  v.  Haight, 

518,  519 

Ware  v.  Lord  Egmont, 

42 

Wark  V.  Willard, 

216 

Warnock  v.  Wightman, 

201 

Warren  v.  Ball, 

490,  492 

V.  French, 

527 

V-  Sweet, 

17 

Warrington  v.  Furbor, 

991 

Warwick  t).  Warwick, 

G74,  688 

Washburne  v.  Burnham 

119,123 

Washburn  v.  Goodman, 

49(; 

Washington  v.  Pratt, 

iio:» 

Washington  Bank  v.  Lewis,            6S3 

Watkins  v.  Crouch, 

946,  949 

Watkinson  v.  Bank  of  Pennsyl 

vania, 

506,  519 

Watlington  v.  Howley, 

370 

Watson  V.  Beabout, 

420,  422 

V.  King, 

671 

V.  Mercer, 

127 

V.  Walker, 

1387,  1400 

V.  Wells, 

084 

V.  Wilson, 

357 

Weakly  v.  Bell, 

900 

Weaver  v.  Crocker, 

1265 

Webb  V.  Wilcher, 

219 

Webber  v.  Cox,  1087 

Webster  v.  Madox,  301,  805 

V.  Webster,  496 
Weidler  v.  Farmers'  B'k  ct 

Lancaster,  43 

Weil  V.  Lowenthal,  1353 

Weit  V.  Thayer,  80 

Wells  r.  (;hild,  1131 

Welsh  1-.  Kirkpati'ick,  1318 

Welton  D.  Garibardi,  1322 

Wemple  v.  Dangerfield,  805 

Wendall  v.  Wadsworth,  103 

West  V.  Brown.  805,  808 

West  Branch  B'k  v.  Fulmer,  1031 
West  J.  R.  R.  Co.  D.Trenton  Car 

Works  Co ,  73 
Western  Trans.  Co.  v.  Marshall,  67,  71 

Westoby  1).  Da}',  1160 

Weymouth  v.  Washington  G.  «& 

A.  R.  R.  Co.,  1303 

Whalley  v.  Small,  167 

Wharton  v.  Wright,  905 
Whitbread  v.  Jordan,         11,  246,  249 

White  V.  Denman,  139 

V.  Foster,  14,  308 

V.  Hampton,  168 

V.  King,  679 

V.  Murphy,  519 

V.  Patten,  216 

V.  Stoddard,  724,  993 

V.  Sydenstricker,  1381 

Whiteacre  v.  Symonds,  650 
Whitehead  v.  Anderson, 

462,  464,  470,  480 

V.  Clifford,  643 

V.  Tuckett,  653 

0.  Wells,  673 

Wliitlesey  v.  Dean,  794 

Whitman  v.  Farmers'  Bank,  717,  798 

Whitney  ».  Abbot,  941 

Whittiugton  v.  Wright,  207 

Whitweil  V.  Johnson,        794,  815,  823 

■?'.  Vincent,  73 

Wickes  V.  Lake,  373,  384 

Wickliffe  «.  Breckeuridffe,  348 

Wicks  V.  Hatch,              ^  663 

Wilcox  V.  McNutt,  815 

V.  Routh,  744,  750 

Wilde  V.  Gibson,  37 

V.  Wilde,  1190 

Wilder  v.  Brooks,  118 

Wildes  0.  Savage,  395,  401 

Wiley  i\  Knight,  687 

Wilkes  i.  Jacks,  1017 
Wilkins  v.  Commercial  Bank,  745, 746 

Wilkinson  -j).  Hall,  585 

Will  /'.  Wliitney,  1159 


INDEX   TO    CASES    CITED. 


XXXIX 


Section. 

Willard  v.  Buckiugham, 

675,  690 

"Williams  v.  Bauk  of  United 

States,     730,786,831,844 

v.  Bank, 

118 

v.  Benton, 

1257 

V.  Brobst, 

1023 

V.  Deriar, 

595 

V.  Granger, 

418,  1389 

v.  Jones, 

642 

V.  Matthews, 

740,  1397 

V.  Miller, 

118(1 

V.  Peyton, 

1106 

V.  Smith, 

805,  824 

v.  Springs, 

1389 

V.  Tatna'll, 

687 

Williamson  v.  Brown,    8,  11 

246,  249 

V.  Wardlaw, 

1150 

Willis  V.  Green, 

758,  761 

®.  Vallett, 

694 

Willison  V.  Pattison, 

980 

Wilson  v.  Anderton, 

471 

V.  Basket, 

1355 

V.  Johnson, 

1137 

V.  Ladd, 

1031 

v.  McCullough, 

7 

V.  School  Dist.  No.  4, 

1390 

V.  Senier,                908 

946,  995 

V.  Swaby, 

703 

Wilson's  Executrix  o.  Senier 

745 

Wilty  V.  Hightower, 

278 

Winchester  v.  Baltimore  R.  R. 

Co., 

688 

Windham  Bank  v.  Norton, 

978,  1397 

Winston  •».  Taylor, 

1084 

V.  Westfeldt, 

369,  372 

Winter  t'.  Landphere. 

177 

«.  Lord  Anson, 

689 

Winthrop  v.  Farrar, 

1297 

Wirtz  V.  Henry, 

1355 

Wiseman  v.  Westland, 

105 

Witczinski  v.  Everman, 

272 

Withington  v.  Herring, 

656 

Witman  v.  Watry, 

643 

Wolfe  V.  Horton. 

1177 

Wollenweber  v.  Ketterlinus, 

1007 

Wood  V.  Blancliard, 

1126 

V.  Crocker, 

570 

V.  Wood, 

759 

V.  Yeatman, 

462 

Section. 

Woodcock  V.  Houldsworth,  821 

WoodliHb  V.  Connor,  1368 

Woodman  v.  Thurston,  936 

Woods  V.  Boots,  659 

V.  Farmere,        7,  273,  298,  300 

V.  Monroe,  1128 

V.  Neeld,  919 

V.  Sherman.  417, 422 

V.  Wilder,  983 

Woodson  V.  Eastman,  '    956 

Woodthorpe  v.  Lawes,  697,  720 

Wool  folk  V.  Bank  of  America,    80,  86 

Wooster  v.  Sherwood,  67,  69 

Worcester  Co.  Bk  v.  Dorchester 

Bank,  80 

Worden  ».  Nourse,  714 

Wood  worth  v.  Paige,  29 
Worslev  v.  Earl  of  Scarborough 

263,  348 

Wright  v.  Marsh,  1160 

V.  Simpson,  418 

V.  Wood,  285,  287 

Wrights'  Mortgage  Trust,  111 

Wyatt  V.  Barwell.  108,  161 

Wyld  V.  Pickford,  542,  558 

Y. 

Yancy  v.  Brown,  401 

Yeager  v.  Farwell,  938 

Yeatman  v.  Erwin,  899 

York  V.  Crawford,  1374 

York  Co.  V.  Central  R.  R.,  553 

Young  V.  Durgin,  855 

V.  Mackall,  1247 

V.  Smith,  592 

V.  Tibbitts,  499,  507 

V.  Wilson,  180 

Youngs  v.  Lee,  837 

Youngblood  v.  Vastine,  217,  222 

Younghaus  v.  Fingar,  1213 


z. 


Zacharie  v.  Bowers,  1031 

Zeigler  v.  Shomo,  124 

Zollar  V.  Janvriu,  483 

Zouch  V.  Willingale,  648 


THE  LAW  OF  NOTICE. 


CHAPTER  I. 


The  Different  Kinds  of  Xotice. 


I.    Actual  Notice. 
II.     CoNSTiiucTivE  Notice. 


I.  Actual  jSTothe. 


§1.  Conliict  of  Authority  as  to  wliat  is  Actual  Notice. 

2.  Causes  of  the  Apparent  Conflict. 

3.  Distinction  between  Knowledge  and  Notice. 

4.  Same,  with  Illustration. 

5.  Different  Kinds  of  Actual  Notice. 

6.  Express  Notice. 

7.  Direct  Information. 

8.  Notice  by  Implication. 

9.  Disregard  of  Notice  Amounting  to  Fraud. 

10.  Circumstances  Sufficient  to  put  upon  Inquiry. 

11.  Knowledge  Imputed  to  One  who  has  the  Means  of  Knowing. 

12.  Notice  to  Purchasers — When  Actual. 

13.  Facts  sufficient  1o  E.xcite  Inquiry. 

14.  Possession  Insufficient. 

15.  Title-Papers. 

10.  Possession  held  SuJH(i(nt. 


DIKFKRENT    KINDS    OF    NOTICE. 

17    Purchaser  to  use  Diligence. 

18.  Purchaser  of  Equitable  Interest. 

19.  Vendor's  Lien. 

20.  Purchaser  from  Mortgagor. 

21.  Notice  of  Trust. 

22.  Purchaser  from  Insolvent  Trustee. 

23.  Suspicious  Circumstances. 

24.  Inadequacy  of  Price. 

25.  Relationship  between  the  Parties. 

26.  Notice  of  Partnership  Interest. 

27.  Information  Sufficient  to  put  upon  Inquiry. 

28.  Diflerent  Sources  of  Information. 

29.  Vague  Statements  Disregarded. 

30.  Degree  of  Certainty  Required. 

31.  Notice  to  an  Agent. 

32.  Principal  not  Benefited  by  Agent's  Fraud. 

33.  How  Principal  Affected  by  Notice  to  Agent. 

34.  Purchase  after  Fruitless  Inquiry. 

35.  Information  Allaying  Suspicion. 

36.  The  EtTect  of  Reliance  on  Information  from  Doubtful  Sources. 


§1.  Conflict  of  Authority  as  to  what  is  Actual  Notice.  —  The 
term  here  used  to  designate  that  branch  of  the  law  of  notice 
which  does  not  rest  upon  mere  legal  inference  or  presumption, 
and  to  distinguish  it  from  what  is  properly  called  constructive 
notice^  would  seem  to  be  sufficiently  definitive  of  its  own  mean- 
ing to  pass  without  further  gloss  or  comment.  On  its  face,  it 
would  appear  to  import  its  character  so  clearly  and  unmis- 
takably, as  not  to  depend  for  elucidation  upon  judicial  con- 
struction. And  yet  the  decisions  upon  this  question  are  far 
from  harmonious,  even  in  this  country,  and  the  contrariety  of 
view  between  the  courts  of  Great  Britain  and  the  United 
States,  is  equally  perplexing  and  unsatisfactory. 

§  2.  Causes  of  the  Apparent  Conflict.  —  Tlie  conflict  of  author 
Ity  is  more  apparent,  however,  than  real.  A  careful  examina- 
tion of  some  of  the  cases,  in  which  the  most  contradictory 
methods  of  classifying  the  kinds  of  notice  there  considered,  dis- 
closes the  fact  that  much  of  the  confusion  arises  from  attempts 
to  give  general  definitions  which  shall  embrace  just  sufficient 
to  be  applicable  to  the  cases  decided,  in  the  same  maimer  as 


ACTUAL    JSIUTlOi!;.  O 

they  ai-e  applied  to  precedent  cases  where  the  same  principles 
are  involved.  A  term  incapable  of  being  disposed  of  in  a 
brief  definition,  may  be  thus  loosely  explained  and  convey  a 
meaning  sufficiently  clear  and  distinct  for  the  purposes  of  the 
case;  but  when  there  is  an  attempt  to  apply  the  definition 
thus  hastily  constructed,  to  other  cases,  it  may  express  too 
much,  or  too  little. 

§3.  Distinction  between  Knowledge  and  Notice.  —  Actual  no- 
nce has  been  defined  by  declaring  that  it  exists  "  when  knowl- 
edge is  actually  brought  home  to  the  party  to  be  affected 
by  it."^  This  excludes  all  notice  which  does  not  amount  in 
fact,  as  well  as  theory,  to  actual  knowledge.  There  can  be  no 
doubt  that  this  definition  is  too  narrow.  If  we  are  to  be  con- 
fined strictly  to  what  would  be  considered  in  metaphysics  as 
actual  knowledge,  it  will  be  necessary  to  banish  the  term  from 
our  statutes,  and  the  courts  will  be  compelled  to  abandon  it  as 
unfit  for  judicial  use.  Scarcely  any  fact  can  be  communica- 
ted in  a  manner  so  direct  as  to  exclude  every  possibility  of 
doubt  as  to  its  authenticity.  Absolute  knowledge  in  the 
strict  sense  of  the  term,  imports  so  high  a  degree  of  certainty 
as  to  the  matter  to  be  established,  that  to  require  it  in  every 
instance  would  render  the  adjustment  of  differences  between 
man  and  man,  on  any  just  basis,  practically  impossible.  Courts 
must  at  best  be  content  with  such  an  approximation  to  perfect 
knowledge  as  the  natural  imperfections  of  human  recollection 
will  afford.  And  if  this  term,  like  all  others  employed  to  ex- 
press the  intention  of  legislative  bodies,  is  to  be  subjected  to 
judicial  construction,  there  seems  no  good  reason  why  it  should 
not  be  construed  in  harmony  with  the  whole  body  of  the 
law,  and  so  as  to  effectuate  the  purposes  for  which  laws  are 
intended. 

§  4.  Same  witli  IllustratioH.  —  The  courts  have  accordingly 
refused  to  confine  actual  notice  within  the  narrow  limits  of 
the  definition  quoted  above.     Their  departure  from  the  rule 

'  Bouv.  Law  Diet.,  3;j6;  Slory  Eq.  Jur.,  §  399. 


4:  DIFFEKENT    KINDS    OF    NOTICE. 

that  renders  actual  notice  and  actual  knou^hdge  as  synony 
nious  terms,  is  perhaps  most  conspicuous  in  cases  arising 
under  the  registry  laws,  where,  in  order  to  give  precedence  to  a 
prior  unrecorded  instrument,  over  a  subsequent  one  att'ecting 
the  same  land,  which  has  been  duly  recorded,  it  is  necessary 
to  prove  that  the  subsequent  purchaser  had  actual  notice  of  the 
prior  unregistered  instrument.  To  follow  the  strict  letter  of 
Bouvier's  definition,  and  bring  actual  knowledge  home  to  the 
subsequent  purchaser,  nothing  would  suffice  less  certain  than 
the  presence  of  the  party  to  be  affected  when  the  prior  instru- 
ment w^as  executed,  and  a  careful  inspection  thereof  by  liim 
with  sufficient  knowledge  of  the  premises  described  to  enable 
him  to  identify  the  property  conveyed,  as  that  of  which  he 
subsequentl}?^  becomes  the  pui'chaser.  And  even  this  might 
fail  to  fix  him  with  actual  knowledge  at  the  time  of  the  sub- 
sequent purchase.  There  would  be  nothing  to  prevent  his 
interposing  as  an  excuse,  his  inability  to  understand  the  import 
of  the  prior  deed,  or  from  declaring  that  the  first  ti-ansaction 
had  passed  out  of  his  recollection,  when  the  second  took  place. 
This  would  leave  the  question  of  knowledge,  after  all,  to  be  de- 
termined by  the  evidence.  The  main  fact  would  depend  upon 
inference  to  be  drawn  from  collateral  circumstances.  But 
where  one  purchased  a  piece  of  land  of  which  there  was  a  for- 
mer conveyance,  the  registration  of  which  was  absolutely  void 
on  account  of  the  absence  of  the  necessaiy  certificates  to  the 
acknowledgment,  and  the  subsequent  purchaser  was  informed 
by  his  attorney,  employed  to  investigate  the  title,  that  such 
void  registry  had  been  made,  it  was  held  that  this  information 
was  sufficient  to  put  him  upon  inquiry,  and,  taken  in  connec- 
tion with  other  collateral  circumstances  of  a  less  significant 
character,  would  warrant  the  conclusion  that  the  subsequent 
purchaser  had  actual  notice  of  the  prior  deed.^  This  was 
several  removes  from  actual  knowledge. 

§  0.  Different  Kinds  of  Actual  Notice.  —  There  are  two  classes 
of  actual  notice,  which  for  convenience  may  be  designated  as 

'Musgrove  v.  Bonser,  5  Orcg.,  313;  Hastings  »  Cutler,  "24  X.  II..  481. 


ACTUAL    NOTICE. 


1.  Expi'css,  wliicli  includes  all  knowledge  or  information  com- 
ing, to  the  party  to  be  charged,  of  a  degree  above  that  which 
depends  upon  collateral  inference,  or  which  imposes  upon  him 
the  further  duty  of  inquiry;  and  2.  Im/plied,  which  imputes 
knowledge  to  the  party  because  he  is  shown  to  be  conscious  ot 
having  the  means  of  knowledge,  though  he  does  not  use  them. 
In  other  words,  where  he  chooses  to  remain  voluntarily  igno- 
rant of  the  fact,  or  is  grossly  negligent  in  not  following  up  the 
inijuiry  which  the  known  facts  suggest. 

§G.  Express  Notice. — The  tirst  of  these  classes  is  easily  and 
briefly  disposed  of  ISTot  only  would  it  embrace  what  might 
fairly  be  called  knowledge,  from  the  fact  that  it  was  derived 
from  the  highest  evidence  to  be  communicated  by  the  human 
senses;  but  also  that  which  is  communicated  by  direct  and  pos- 
itive information,  either  written  or  oral,  from  persons  who  are 
personally  cognizant  of  the  fact  communicated. 

§  7.  Direct  Information.  —  It  has  been  decided  in  several  cases 
where  the  information  came  from  those  whose  means  of  knowl- 
edge were  of  an  inferior  sort,  that  this  notice  to  effectually 
bind  subsequent  purchasers,  must  come  from  parties  in  inter- 
est,^ and  in  other  cases  it  is  decided  that  the  statements  ot 
third  parties  wlio  are  ignorant  of  the  facts  will  not  amount  to 
notice.'^  But  it  has  been  held,  in  a  case  in  which  the  inade- 
quacy ot  the  vague  and  uncertain  conjectures  of  those  unac- 
quainted wnth  the  facts  is  fully  recognized,  that  where  the 
communication  comes  from  those  who  speak  advisedly  of  the 
matter,  or  from  information  in  their  possession,  of  a  definite 
character,  the  notice  will  be  sufficient  to  affect  the  conscience 
ot  the  purchaser.^     In  some  of  the  ca^es  cited,  however,  the 


'  Rogers  v.  Hoskins,  14  Ga.,  166 ;  Miller  v.  Cresson,  5  Watts  &  Serg.,  284; 
Woods  V.  Farmere,  7  Watts,  382;  Sag.  ou  Vend.,  755,  and  cases  cited. 

■^  Butler  ?j.  Stevens,  26  Me.,  484;  Wilson  v.  McCullougli,  11  Harris,  440; 
City  Council  ■».  Page,  1  Speers'  Eq.,  15!) ;  Lamont  v.  Stimson,  5  Wis.,  443. 

•' Jackson  i).  Burgott,  10  Johns.,  457;  Pearson  v.  Daniel,  2  Dev.  &  Bat.  Eq., 
.366;  Doyle  v.  Teas,  4  Scam.,  202;  Mullikin  v.  Graham,  22  P.  F.  Smith,  484; 
Curtis  V.  Mundy,  3  Mete,  407;  Cox  v.  Milncr,  23  111., 476;  Rupert  v.  Mark, 
15  Id.,  542. 


6  DIFFERENT   KINDS    OF    NOTICE. 

notice  obtained  by  information,  is  regarded  as  of  that  charac 
ter,  which  has  the  effect  of  putting  the  purchaser  upon  inqui- 
ry. But  when  the  information  comes  directly  from  the  party 
in  possession  of  full  knowledge  of  the  facts  communicated, 
and  is  so  full  and  complete  as  to  all  the  essential  details  of  the 
matter  as  to  carry  conviction  to  an  ordinary  mind,  it  would 
properly  be  classed  as  express  notice,  though  it  stopped  far 
short  of  what  might  be  correctly  termed  absolute  knowledge,^ 

§  8.  Notice  by  Implication.  —  Implied  notice,  includes  neither 
positive  knowledge,  nor  information  so  direct  and  unequivocal 
as  necessarily  to  carry  conviction  to  the  mind  of  the  person 
notified.  Neither  does  it  belong  to  that  class  which  depends 
upon  legal  presumption.  It  is  circumstantial  evidence  from 
which  the  jury,  after  estimating  its  value,  may  infer  notice. 
It  differs  from  express  notice  for  the  reason  that  the  latter  is 
supposed  to  be  absolutely  convincing  in  itself,  while  the  former 
merely  suggests  to  the  mind  of  the  person  to  be  thereby  affected, 
the  existence  of  the  fact  to  which  his  attention  is  directed,  and 
points  out  the  means  by  which  he  may  obtain  positive  and  con- 
vincing information.^  It  differs  on  the  other  hand  from  con- 
structive  notice,  with  which  it  is  frequently  confounded,  and 
which  it  greatly  resembles,  with  respect  to  the  character  of  the 
inference  upon  which  it  rests;  constructive  notice  being  the 
creature  of  positive  law,  or  resting  upon  strictly  legal  in- 
ference,^ while  implied  notice  arises  from   inference  oi  fact.* 

§9.  Disregard  of  Notice  Amounting  to  Fraud.  —  An  example 
of  these  distinctions,  as  drawn  by  the  courts,  is  furnished  by 
the  holding  in  a  case  between  a  party  claiming  under  a  prior 
unregistered  deed  and  one  claiming  under  a  subsequent  regis- 


'Musgrovee  Bonser,  5  Oreg.,  313;  Hastings  v.  Cutler,  24  N.  H.,  481; 
Barnes  v.  McClinton,  3  Penn.,  67. 

5  Farnsworth  v.  Childs,  4  Mass.,  637. 

3  Plumb.  V.  Fluitt,  2  Anstr.,  432. 

*  Williamson  v.  Brown,  15  N.  Y.,  354;  Heermans  v.  Ellsworth,  64  N.  Y., 
159. 


ACTUAL    NOTICE.  i 

tered  convejarce,^  similar  to  that  already  cited.'^  There  the 
court  decided  under  a  statute  re;j^uiring  actual  notice,  to  charge 
subsequent  parties  with  notice  of  prior  unrecorded  instruments 
or  equitable  claims,  that  the  party  claiming  under  the  unre- 
corded deed  was  not  required  to  prove  that  the  subseipent 
purchaser  had  certain  knowledge  of  the  prior  conveyance,  such 
as  lie  would  have  if  he  had  seen  the  first  deed  executed  and 
delivered  to  the  grantee.  It  was  held  that  something  less 
than  positive  personal  knowledge  of  the  fact  of  the  conveyance 
would  be  sufficient  to  constitute  "  actual  notice,"  within  the 
true  intent  and  meaning  of  the  statute.  The  test  of  suffi- 
ciency applied  to  the  notice  in  this  case,  was  that  it  "should  be 
so  express  and  satisfactory  to  the  party,  as  that  it  would  be 
fraud  in  him  subsequently  to  purchase,  attach  or  levy  upon  the 
land,  to  the  prejudice  of  the  first  grantee." 

§  10.  Circnrastaiices  Sufficient  to  put  uiwn  Inquiry.  —  Where 
the  matter  of  which  express  notice  is  proved,  is  merely  a  cir- 
cumstance, collateral  to  the  main  fact  with  notice  of  which  it  is 
sought  to  charge  the  party,  the  collateral  circumstance,  if  suffi- 
cient to  put  him  upon  inquiry  leading  to  the  truth,  will  in 
general,  be  regarded  as  good  notice  of  the  ultimate  fact  to  be 
established.^  All  the  cases,  however,  where  this  doctrine  is 
maintained  do  not  go  the  length  of  holding  that  facts  and  cir- 
cumstances sufficient  to  put  the  party  to  be  affected  upon  in- 
quiry would  amount  to  actual  notice  of  such  fact;  nor  even  evi- 

'  Curtis  V.  Mimdy,  3  M  etc.,  405. 

^  Ante  §  4,  note. 

'Green  «.  Slayter,  4. Johns.  Ch.,  38;  McDaniels  p.  Flower  Brook  iVfanTg, 
Co.,  22  Vt.,  274;  McGehee  v.  Gindrat,  20  Ala.,  95;  Center  v.  P.  &  M.  Bank 
22  Ala.,  743 ;  Maybin  v.  Kirby,  4  Rich.  Eq.,  105 ;  Rariton  Water  Power  Co. 
V.  Veghte,  21  N.  J.  Eq.,  463 ;  Hoy  v.  Bramhall,  19  N.  .J.  Eq.,  563 ;  Danforth  o. 
Dart.,  4  Duer,  101 ;  Parker  v.  Kane,  4  Wis.,  1 ;  Sterry  v.  Arden,  1  .John.  Ch., 
261 ;  Tuttle  v.  Jackson,  6  Wend.,  213;  Peters  v.  Goodrich,  3  Conn.,  146;  Pen- 
dleton ».  Fay,  2  Paige,  202;  Blaisdell  v.  Stevens,  16  Vt.,  179;  Staflbrd  v. 
Ballon,  17  Vt.,  329;  Vattier  v.  Ilinde,  7  Pet.,  252;  Ringgold  «.  Waggoner,  14 
Ark.,  69;  Swarthout  v.  Curtis,  5  N.  Y.,  301 ;  Randall  v.  Silverthorne,  4  Penn. 
St.,  173 ;  Parke  v.  Chadwick,  8  W.  &  S.,  96 ;  Sergeant  v.  Ingersoll,  7  Penn.  St., 
340;  S.  C.  15/d,343. 


8  DIFFERENT    KIXDS    OF    NOTICE. 

dence  from  vvliicli  tlie  jury  might  infer  positive  knowledge  or 
express  notice;  but  that  it  would  amount  to  constructive  notice^ 
while  others  declare  quite  plainly  that  such  circumstances  are 
actual  notice.  This  difference  does  not  necessaril_y  indicate  a 
conflict  between  the  authorities,  but  merely  shows  that  the 
same  circumstances  from  which  the  jury  might  infer  as  matter 
of  fact,  that  express  notice  had  been  given,  where  constructive 
notice  is  sufficient,  would  serve  as  a  foundation  for  the  legal 
presumption  which  the  party  to  be  charged  would  not  be  per- 
mitted to  deny.^ 

§  11.  Knowledge  Imputed  to  One  who  has  the  Means  of  Know- 
ing.— It  is  easy  to  understand  how  one  may  be  concluded  from 
denying  actual  notice  when  positive  information  has  been 
traced  directly  to  him.  It  is  not  necessary  to  invoke  the  doc- 
trine of  constructive  notice  in  order  to  justify  holding  that  he 
will  not  be  heard  to  deny  that  he  understood  the  import  of 
what  was  clearly  and  plainly  communicated.  Whether  the  no- 
tice has  been  communicated  cannot  be  determined  by  the  stand- 
ard of  the  recipient's  stupidity  or  heedlessness.  For  the 
reason,  therefore,  that  ignorance  of  an  important  fact  which  has 
been  placed  within  the  eas}'  reach  of  a  party,  imports  either 
fraud,  or  gross  negligence  on  his  part,  the  law  will  never 
inquire  further  than  is  necessary  to  show  the  giving  of  the  no- 
tice by  such  means  as  are  sufficient  to  convey  intelligence  from 
one  human  being  to  another.  It  has  accordingly  been  held 
that,  "When  a  party  having  knowledge  of  such  facts  as  would 
lead  any  honest  man  using  ordinary  caution,  to  make  further 
inquiries,  does  not  make,  but  on  the  contrary,  studiouslj'  avoids 
making,  such  obvious  inquiries,  he  must  be  taken  to  have 
notice  of  these  facts,  which,  if  he  had  used  such  ordinary  dili- 
gence, he  would  readily  have  ascertained.  "- 

§12.  Notice  to  Pnrchasers  —  When  Actual.  — A  familiar  class 
of  cases  in  which  this  doctrine  is  applied,  is  that  to  which  the 

'  Po»t  II,  Constructive  Notice. 

*  Baron  Alderson,  in  Wliitbread  «.  .Jordan,  1  You.  &  Coll.  Exch.,  803; 
Hankinson  r.  Barbour,  29  III.,  80;  Lewis®.  Bradford,  10  Walts,  67;  Wil- 
liamson v.  Brown,  15  N.  Y.,  354;  Fiske  d.  Potter,  39  N.  Y'.,  70. 


ACTUAL    NOTICE.  9 

examples  already  furnished,  belong  where  the  controversy  lies 
between  purchasers  of  the  same  piece  of  real  estate,  and  the 
first  purchaser  holds  under  an  unrecorded  conveyance  of  which 
it  is  sought  to  charge  the  subsequent  purchasers  with  notice.^ 
In  a  case  of  this  kind,  arising  under  the  provisions  of  a  statute 
rcijuiring  actual  notice  of  unrecorded  instruments,  in  order  to 
affect  subsequent  purchasers  for  value,  and  where  the  spread- 
ing of  an  instrument  upon  the  records,  which,  for  the  want  of 
certain  formalities,  was  not  entitled  to  be  recorded,  did  not 
amount  to  constructive  notice  under  the  statute,  it  was  held  by 
Judge  Bliss  that — "  If  the  deed  was  actually  put  upon  record, 
although  not  so  acknowledged,  that  its  record  would  be  con- 
structive notice,  and  if  the  party  saw  that  record,  it  would  be 
very  strong,  if  not  conclusive  evidence  of  the  actual  notice  re- 
quired by  statute.  The  object  of  the  Registry  Act  is  to  protect 
innocent  purchasers,  and  no  subsequent  purchaser  can  be  in- 
nocent Avho  knew  of  a  previous  conveyance,  whether  it  be  so 
acknowledged  as  to  authorize  its  record  or  not.  And  it  would 
be  absurd  to  say  that  an  exhibition  to  him  of  a  copy  of  such 
conveyance,  made  under  circumstances  that  would  presume  it 
to  be  a  genuine  copy,  would  be  no  evidence  of  such  notice."^ 
Tlie  learned  judge  would  probably  have  gone  farther,  had  the 
case  required  it,  and  laid  down  the  doctrine  that  one  who  had 
seen  a  copy  of  the  prior  deed  under  such  circumstances,  would 
be  in  possession  of  such  notice  as  to  render  fraudulent  a  sub- 
sequent purchase  by  him  of  the  property  thereby  conveyed. 

§13,  Facts  Sufficient  to  Excite  Inquiry.  —  There  is  a  decided 
conflict  of  authority,  both  English  and  American,  concerning 
some  particular  facts,  whether  they  are  sufficient  to  put  a  pur- 
chaser upon  inquiry,  so  as  to  charge  him  with  knowledge  of  a 
prior  conversance.  Tliis  conflict  cannot  be  reconciled,  nor  can 
anything   like  a  general  rule  be  deduced  therefrom,  which 


'Musick  V.  Barney,  49  Mo.,  458;  Gilhnrl  v.  -less.,  31  Wis.,  110;  Hastin^^s  y. 
Cutler,  24  N.  H.,  471 ;  Musgrove  v.  Bousor,  5  Oreg.,  318;  contra— Kerna  v. 
Swope,  2  Watts,  75. 


10  DIFFERENT    KINDS    OF    NOTICE. 

Would  not  be  subject  to  a  multitude  of  exceptions,  for  the  rea- 
son that  in  estimating  the  effect  upon  the  conscience  of  the 
purchaser,  of  particular  circumstances  brought  to  his  knowl- 
edge prior  to  the  purchase,  there  are  doubtless  many  consider- 
ations, purely  local  in  tliiir  character,  which  tend  to  affect  the 
value  of  such  circumstances  as  evidence  of  notice. 

§  14.  Possession  Insufficient.  —  For  example,  in  Massachusetts, 
where  the  statute  requires  actual  notice,  it  is  held  that  proof 
of  open  and  notorious  occupation  and  improvement  would  not 
be  such  evidence  of  ownership  in  the  occupant,  as  to  make  it 
the  duty  of  any  one  cognizant  of  such  facts,  to  make  further 
inquiry  before  purchasing.^  And  in  Lamb  v.  Pierce,'  it  i> 
held  not  only  that  such  open  and  notorious  possession  and  im- 
provement would  not  be  sufficient;  but  the  court  goes  further, 
and  declares  that  proof  of  facts  which  would  reasonably  put  a 
purchaser  upon  inquiry,  would  not  fulfill  the  statutory  require- 
ments. This,  how^ever,  goes  so  far  beyond  the  most  recent 
authority  cited  in  support  of  the  doctrine  therein  declared,'^ 
that  the  case  may  be  regarded  as  unsupported  by  authority- 
even  in  that  state,  so  far  as  it  goes  beyond  exchidiug  possessio?i 
as  evidence  of  notice. 

§  15.  Title  Papers.  —  The  case  of  AVhite  v.  Foster  referred  to 
last  above,  was  where  there  was  an  equitable  claimant  to  an  in- 
terest in  real  estate,  who  had  not  placed  his  claim  within  the 
protection  of  the  registry  laws.  The  reservation  of  this  inter- 
est was  mentioned  in  a  mortgage,  and  the  property  subsequently 
conveyed  to  a  purchaser  who  had  no  other  notice  of  the  in- 
terest reserved  than  the  fact  that  it  was  mentioned  in  a  mortgage 
subject  to  which  he  purchased.  This  was  held  to  be  actual 
notice,  and  the  court,  in  construing  the  statute,  declared  that 
in  order  to  show  actual  notice  it  was  not  necessary  to  prove 
an  actual  exhibition  of  the  deed.     This  must  be  taken  as  an 


1  Pomroy  v.  Stevens,  11  Mete,  244;  Parker  v.  Osgoo  1,  ,3  Allen,  487;  Doc 
ley  V.  Wolcott,  4  Allen,  406;  Sibley  v.  Leffingwell,  8  Allen,  584. 
'•'113  Mass.,  72. 
"White  V.  Foster,  102  Mass.,  875. 


ACTUAL    NOTICE.  11 

admission  of  tlie  efficacy  of  facts  which  put  one  upon  inquiry; 
for  it  cannot  be  contended  that  the  subsequent  purcliaser  in 
tliis  instance  was  expressly  notified  of  the  outstanding  equity, 
by  the  recitals  in  an  instrument  aifecting  his  title,  merely  be- 
cause he  had  notice  of  such  instrument.  The  only  ground 
upon  which  he  could  be  charged  with  actual  notice,  was  that, 
having  notice  of  the  mortgage,  ordinary  prudence  dictated 
that  he  should  examine  it  with  a  view  to  gaining  a  knowledge 
of  its  contents. 

§16.  Possession  held  Siifliclent.  —  The  statute  of  the  State  of 
Missouri  provides  that  instruments  affecting  the  title  to  real 
estate  shall  not  be  valid,  except  between  the  parties  and  such 
as  h^vQ  actual  notice  thereof,  until  deposited  with  the  recorder 
for  record.^  This  language  of  the  statute  is  construed  by  the 
Supreme  Court  of  that  state  to  mean,  that  any  fact  from  which 
a  jury  may  infer  actual  notice,  would  be  admissible  in  evidence 
to  establish  that  fact.  This  species  of  notice  is  defined  as  be- 
ing either  knowledge,  or  consciousness  of  having  the  means  of 
knowledge,  although  he  may  not  use  them;'^  and  open,  noto- 
rious possession,  under  a  claim  of  ownership,  by  the  party 
holding  adversely  to  the  subsequent  purchaser,  is  regarded  as 
sufficient  to  place  the  means  of  knowledge  within  his  reach, 
and  from  such  possession  the  jury  might  infer  that  the  subse- 
quent purchase  was  made  with  either  full  knowledge,  or  in 
voluntary  ignorance  of  the  adverse  claim.^ 

§  17.  Purchasers  to  use  Diligence.  —  In  Cambridge  Yalley 
Bank  v.  Delano,*  the  doctrine  of  actual  notice  by  implication 
from  circumstances,  is  very  comprehensively  and  fully  set 
fourth  as  between  adverse  claimants  to  real  estate.  The  most 
conspicuous  fact  in  this  case  was  the  recital  in  antecedent  title 

'  Wag.  Stat.,  277,  g  26. 

"Speck  V.  Kiggin,  40  Mo.,  405;  Manpin  v.  Emmons,  47  Mo.,  304;  Roberts 
T.  Mosley,  64  Mo.,  507. 

'Vaughan  v.  Tracy,  22  Mo.,  415.  See  Post  Cli.  II,  Part  III;  see  also 
Parker  v.  Kane,  4  Wis.,  1,  where  notorious  acts  of  ownership  are  held  to 
amount  to  notice. 

*  48  N.  Y.,  326. 


13  DIFFERENT    KINDS    OF    NOTICE. 

papers  of  the  grantor.  It  was  there  held  that  "  where  a  pur- 
chaser lias  knowledge  of  any  fact,  sufficient  to  put  a  prudent 
m?in  upon  an  inquiry,  which  if  prosecuted  with  ordinary  dili- 
gence, would  lead  to  actual  notice  of  some  right  or  title,  in 
coniiict  with  that  he  is  about  to  purchase,  it  is  his  duty  to 
make  the  inquiry,  and  if  he  does  not  make  it,  he  is  guilty  of 
bad  faith  or  negligence  to  such  an  extent  that  the  law  will  pre- 
sume that  he  made  it,  and  will  charge  him  M'ith  the  actual  no- 
tice he  would  have  received  if  he  had  made  it."  The  same 
doctrine  is  also  supported  by  numerous  authorities  in  this  and 
other  states.'^ 

§  18.  Purchaser  of  Equitable  Interest.  —  Where  one  purchases 
with  notice  of  the  fact  that  the  legal  title  to  the  property  is 
in  some  one  else  than  his  grantor,  he  is  thereby  put  upon 
inquiry  as  to  the  nature  and  extent  of  his  grantor's  title,  and  if 
such  inquiries  would  lead  to  knowledge  of  circumstances  affect- 
ing the  title  he  will  be  bound  as  by  actual  notice  of  such 
facts.-^ 

§19.  Vendor's  Lien.  —  So  when  the  adverse  claim  is  a  ven- 
dor's lien  for  the  unpaid  purchase  money,  notice  to  the  pur- 
chaser that  the  title  passed  without  actual  pa3'ment  of  the  price 
agreed  upon,  although  the  deed  contains  an  acknowledgment 
of  full  paj'ment,  will  be  sufficient  to  put  him  upon  inquiry  as 
to  that  fact,  and  failing  to  exercise  reasonable  diligence  to  as- 
certain whether  there  has  been  a  subsequent  payment,  he  will 
be  charged  M^th  actual  notice  of  what  remains  unpaid,  and 
will  hold  the  title  subject  to  the  prior  lien.^ 

§  20.  Purchaser  from  3Iortgagor.  —  So  also  the  fact  that  a  mort- 
gage appears  to  have  been  disciiarged  by  a  person  other  than 
the  mortgagee,  has  been  held  sufficient  to  excite  inquiry  as  to 

'  Mayor  &c.  v.  Williams,  6  Md.,  23'j  ;  Price  v.  McDonald,  1  Md.,  403 ; 
Leiman's  Estate,  33  Md.,  125;  Blatchley  v.  Osborn,  33  Conn.,  226;  IVute 
V.  Nute,  41  N.  H.,  60;  Warren  v.  Sweet,  31  N.  H.,  332;  Maupin  v.  Emmons 
47  Mo.,  304;  Nelson®.  Sims,  1  Cash., 383 ;  Russell  v.  Petree,  10  B.  Moii.,  184;' 
Howard  Ins.  Co.  v.  Halsey,  4  Sandf.,  565;  S.  C.  8  N.  Y.,  271. 

"  Sergeant  v.  lugersoll,  7  Penn.  St.,  340;  S.  C.  15  Penu.  St.,  343. 

8  Parke  v.  Chadwick,  8  W.  &  S.,  96. 


ACTUAL    MOTJCK.  13 

the  reason  of  tlie  unusual  circumstance,  and  the  purchaser 
with  knowledge  of  such  fact,  would  be  h  nind  by  knowledge 
of  all  such  fuither  facts  atfcjcting  the  title  to  the  property,  as 
the  inquiry  wouhl  disclose.^ 

^21.  Notice  of  Trust.  — Where  the  purchaser  had  knowledge 
that  the  property  had  be^n  ])urchased  by  persons  who  were 
executors  of  a  will  and  mentioned  as  such  in  one  of  the  deeds 
forming  a  link  in  the  chain  of  title,  together  with  knowledge 
that  such  executors  held  in  trust  a  large  estate  with  unlimited 
authority  to  purchase  real  estate,  this  was  held  sufficient  to 
charge  the  purchaser  with  notice  of  the  fact  that  the  property 
purchased  was  held  subject  to  the  trust,  upon  the  principle  that 
being  possessed  of  knowledge  of  distinct  facts  affecting  the  title 
of  his  contemplated  purchase,  he  could  not  close  hfs  eyes  and 
screen  himself  under  the  plea  of  ignorance  of  other  facts  con- 
nected with  those  already  known  to  him.  Good  faith  rendered 
it  incumbent  upon  him  to  make  reasonable  inquiry,  and  he 
took  the  title  charged  with  the  trust  of  which  such  inquiry 
would  have  informed  him.- 

§  23.  Purchaser  from  Insolvent  Trustee.  —  Knowledge  of  the 
insolvency  of  a  trustee  from  whom  a  conveyance  is  received  in 
satisfaction  of  the  personal  indebtedness  of  such  trustee,  would 
be  sufficient  to  put  the  purchaser  upon  inquiry  as  to  the  hona 
-fides  of  the  transaction,  and  in  equity  he  would  be  considered 
as  having  notice.^ 

§  23.  Suspicious  Circumstances. —  Inadequacy  of  the  price  paid, 
under  circumstances  otherwise  of  a  suspicious  character,  may 
be  sufficient  to  excite  inquir}'.  When  there  is  a  strong  in;-en- 
tive  to  pass  the  title  to  one  who  will  be  in  a  situation  to  as- 
sume the  character  of  an  innocent  purchaser,  the  gross  disi)ro- 
portion  of  the  amount  paid  to  the  real  value  would  be  such  a 
l)adge  of  fraud  as  to  inform  the  purchaser  so  loudly  of  the  in- 
tended wrong,  that  he  will  not  I)e  permitted  to  slielter  liimsclf 

'  Swarthout  v.  Curtis,  5  N.  Y.,  :}')i. 
'  Blaidsell  v.  Stevens,  10  Vt.,  17U. 
3  ]\'n(11eton  v.  Fay,  2  Paige,  202. 


14  DIFFERENT    KINDS    OF    NOTICE. 

behind  the  fact  that  he  did  not  linow  of  the  defect  in  his 
2:rantor's  title.  As,  where  property  worth  two  or  three  thou- 
sand dollars,  was  conveyed  for  a  consideration  of  one  hundred 
dollars,to  one  whom  the  grantor  regarded  as  "friendly"  to  him- 
self, and  there  was  no  other  explanation  of  the  unequal  trans- 
action, oifered  by  the  parties  thereto  than  the  friendly  relations 
subsisting  between  the  grantor  and  grantee,  while  it  was  in 
evidence  that  the  property  in  the  hands  of  the  grantor  was 
subject  to  an  adverse  equitable  interest.  The  purchaser  took 
with  notice,^ 

§  24.  Inadequacy  of  Price.  —  So,  where  a  bond  and  mortgage 
for  $8,000  upon  which  $2,000  of  the  principal  and  all  the 
accrued  interest  had  been  paid  was  transferred  for  only  three- 
fourths  its  actual  value,  and  the  consideration  was  received  in 
unsalable  goods  at  forty  per  cent,  above  their  market  price, 
with  no  intention  of  using  or  disposing  of  them  in  the  regular 
way,  but  with  a  view  to  sending  them  to  an  auction  store, 
these  circumstances  were  held  sufficient  to  put  the  purchaser 
upon  inquiry  as  to  the  ownership  of  the  security.^  But  mere  in- 
adequacy of  price  realized  at  a  sheriiPs,  or  other  involuntary 
sale,  would  not  tend  to  put  the  purchaser  upon  inquiry,  for 
reasons  too  obvious  to  require  comment.^ 

§  25.  Relationship  between  the  Parties.  —  Tlie  fact  that  the 
grantor  was  the  father  of  the  grantee,  was  held  to  be  evidence  ot 
the  son's  knowledge  of  a  trust  subject  to  which  the  land  was 
held  by  the  father,  and  properly  went  to  the  jurj'  to  enable  them 
to  determine  that  fact.^  And  where  an  insolvent  debtor,  pressed 
by  his  creditors,  conveyed  absolutely  all  his  property  to  his 
son,  a  young  man  without  property,  receiving  neither  payment 
nor  security,  such  circumstances  were  held  to  proclaim  tl>ebad 
faith  of  the  transaction  in  such  unmistakable  terms,  that  a 
purchaser  from  the  son,  with  notice  ot  these  facts,  could  not 


'  Hoppin  V.  Doty,  25  Wis.,  573. 
'  Peabody  v.  Fentou,  3  Barb.  Ch.,  451. 
3  Stockett  V.  Taylor,  3  Md.  Ch.  Dec,  537. 
'  Trefta  «.  King,  18  Penn.  St.,  157. 


ACTUAL    NOTICE.  15 

hold  against  a  purchaser  at  a  sale  under  an  execution  against 
the  father.^ 

§  26,  Notice  of  Partnership  Interest,  —  It  has  been  held  that 
notice  that  the  property  belongs  to  a  partnership  is  sufficient 
to  charge  it  in  the  hands  of  the  purchaser  with  partnership 
debts,*  But  it  has  been  elsewhere  decided  that  a  purchaser 
from  a  surviving  partner  who  held  the  property  in  his  indi- 
vidual name,  would  not,  by  mere  knowledge  that  it  was  part- 
nership property,  be  charged  with  notice  of  the  trust  under 
which  his  grantor  held,  so  as  to  render  the  property  in  his 
hands  subject  to  the  partnership  debts,^  In  this  latter  case, 
however,  it  was  held  that  the  manner  of  the  transfer  being 
secret,  and  the  purchaser  knowing  that  the  firm  were  greatly  in 
debt,  would  suffice  to  put  such  purchaser  upon  inquiry. 

§  27.  Information  Snfflcient  to  Put  Upon  Inquiry,  —  Notice  by 
verbal  or  written  information  has  elsewhere  been  considered, 
for  the  most  part,  as  express  notice;^  but,  as  there  intimated, 
in  many  instances  the  information  is  regarded  on  account  of 
the  source  from  which  it  conies,  as  merely  sufficient  to  put  the 
purchaser  upon  inquiry,  and  in  some  cases  would  be  so  vague 
and  uncertain  as  not  even  to  amount  to  this.  However,  where 
information  of  the  existence  of  a  patent  was  received  through 
neighborhood  report,  and  from  the  declaration  of  a  stranger 
that  he  had  seen  it,  this  was  held  sufficiently  certain  to  be 
taken  in  connection  with  knowledge  of  possession  and  cultiva- 
tion by  tenants  of  the  patentee,  as  evidence  of  notice,  and 
would  bar  the  laying  a  warrant  upon  the  land  as  waste  and 
unappropriated.^  And  where  a  mortgagee  who  had  lost  the 
instrument  before  having  it  recorded,  informed  the  purchaser 
after  the  notes  so  secured  had  been  transferred  to  another,  this 
information  was  held  sufficient  to  put  the  party  upon  inquiry 

'  Ringgold  V.  Waggoner,  14  Ark.,  69. 

°  Hoxie  V.  Carr,  1  Sumn.,  17;>;  Sigourney  v.  Muaa,  7  Conn.,  334. 

^Tillinghast  v.  Cliamplin,  4  R.  I.,  173. 

*  Ante  §  6  (?<  seq. 

« Roberts  v.  Stonton,  3  Munf.,  129. 


It)  DITFEKEMT    KINDS    OF    NOTICE, 

before  purcliasiDg,  and  failing  to  inquire,  the  mortgaged  proper- 
ty was  bound  in  liis  liands  for  tlie  debt.^  So,  where  the  com- 
munication came  from  a  stranger  who  had  no  connection  what- 
ever with  the  title,  the  notice  was  held  sufficient  to  charge  the 
purchaser.  ^ 

§28.  Diiferent  Sources  of  Information.  —  The  character  of  the 
j^erson  giving  unasked  advice  of  this  kind  is  always  to  be  taken 
into  consideration  in  estimating  the  value  of  the  information 
His  relations  and  intimacy  with  the  parties  from  whom  direct 
information  might  naturally  be  expected  to  come;  his  con- 
nection with  the  transaction,  and  his  facilities  for  obtaining 
intorination,  as  well  as  the  degree  of  knowledge  he  displays, 
should  all  be  considered  before  the  party  contemplating  a  pur- 
chase can  venture  with  safety  to  utterly  disregard  his  advice. 
Xotice  coming  from  a  friend  or  relation  of  the  adverse  claim- 
ant has  been  held  sufhcient.^  While  the  vague  reports  of  mere 
strangers,  have  been  held  not  to  atfect  the  conscience  of  the 
purchaser.* 

§  29.  Vague  Statements  Disregarded.  — -  Whatever  be  the  source 
of  the  information,  to  be  effectual  as  notice,  either  express  or 
implied,  it  must  amount  to  something  more  than  a  vague 
statement  that  the  vendor's  title  is  subject  to  an  equity.^  Or, 
coming  even  from  the  guardian  of  the  equitable  claimant, 
informing  the  party  that  he  will  purchase  at  his  peril.^  Such 
wild  statements  as  these  could  not  put  the  party  upon  inquiry, 
for  the  reason  that  they  do  not  tend  to  direct  his  attention  to 
any  specific  source  of  knowledge;  and  it  is  contrary  to  reason 
and  common  sense,  that  one  should  be  prevented  from  pur- 

'  Rowan  v.  Adams,  1  Sm.  &  M.  Ch.,  45. 

'  Currens  v.  Hart,  Hardin,  37 ;  Erickson  v.  RaflFerty,  79  111.,  209. 

'  Ripple  tJ.  Ripple,  1  Rawle,  386;  Mullikin  v.  Graham,  73  Penn.  St.,48t; 
Butcher  v.  Yocum,  61  Id.,  168.  Information  from  vendor's  house  agent  can- 
not be  disregarded,  Lewis  v.  Bradford,  10  AYatts,  67. 

*  Jaques  v.  Weeks,  7  Watts,  261. 

''  Pittman  v.  Sofley,  64  111.,  155 ;  Massie  v.  Greenhow,  3  Patt.  &  II.,  255. 

*  Jolland  V.  Stainbridge,  3  Ves.  jr.,  478. 


ACTUAL    NOTICE.  17 

chasing  hy  what  he  might  fairly  regard  as   tlie   idle  gohsi])  oi 
busy-hodies.^ 

§30.  Degree  t)f  Certainty  Required. —  P.nt  while  it  is  essential 
that  there  should  be  reasonable  certain:;)'  as  to  the  tacts  com- 
municated, it  is  not  to  be  understood  that  there  should  be  a  full 
description  of  the  outstanding  e(|uity.  It  sutHces  if  the  in- 
furmati(jn  is  certain  within  the  rule,  id  certain  ext  quod  Gertum 
reddl  potest.  If  it  directs  the  purchaser  to  where  he  can 
become  fully  informed  of  the  particulars,  he  will  be  affected 
by  it,  if  he  fails  to  pursue  his  iiKjuirici  in  the  direction  in- 
dicated.^ 

§31.  Notif-e  to  an  Agent.  —  Generally,  when  the  doctrine  of 
notice  to  agents  is  referred  to  in  the  books,  it  is  mentioned  as 
constructive  notice.^  But  it  seems  to  be  governed  to  a  con- 
siderable extent  by  the  rules  applicable  to  actual  notice.  In 
the  case  of  Barnes  v,  McClinton,^  Gibson,  C.  J.,  in  rendering 
the  opinion  of  the  court,  says:  ^  *  *  *  "  The  purchaser 
liad  actual  knowledge,  through  his  counsel,  of  the  contents  of 
the  paper,  '''  ■'•'  ""  '■''  *  *  "  Notice  to  the  counsel,  in 
the  same  transaction,  being  presumptive  notice  to  the  client." 

§32.  Principal  Not  Benefited  by  Agent's  Fraud.  — To  hold  that 
purchasers  could  never  be  affected  with  actual  notice,  through 
a!i  agent  or  attorney,  would  be  to  afford  extraordinary  facilities 
to  those  who  wished  to  take  fraudulent  advantage  of  the  statutes 
requiring  actual  notice  of  ecpiitable  interests,  or  unrecorded 
instruments  affecting  titles  to  real  estate,  in  order  to  charge 
the  purchaser.  If  the  agent  or  attorney  to  whom  was  entrusted 
the  duty  of  investigating  the  title,  and  preparing  instruments 
of  conveyance,  should  be  conveniently  blind  to  whatever 
promised  to  disclose  an  adverse  claiu),  outside  of  the  public 

'  Woodwortli  V.  Paige,  5  O.  St.,  70. 

« Chicago,  R.  I.  &  P.  R.  R.  Co.  v.  Kennedy,  70  111.,  350;  Spofford  v. 
Weston,  2!)  Mc.,  140;  Barllett  v.  Glascock,  4  Mo.,  (32;  Barnes  v.  McClinton, 
3  Penn.,  67. 

•*  See  Post  Cli.  V.,  Pt.  II. 

*  3  Penn.,  07;  Stanley  v.  Chamberlain,  39  N.  J.  L.,  r)Orji;  Fiske  v.  Potter, 
39  N.  Y.,  70. 

2 


18  DIKKiaJKNl'    KrN[>S    OK    XOTKJK. 

records,  or  con\enientl_v  dumb  in  regard  to  such  disclosures 
when  made,  his  pi-iucipal  might  be  elfectuallj  shielded  from 
the  conseijueiices  of  the  fraud  perpetrated  bj  his  rej)resenta- 
tive.  It  inig-ht  not  sound  consistent  to  say  that  "notice  to  an 
agent  is  actual  notice  to  the  priucipaL''  But  in  the  event  of 
this  question  arising,  under  such  a  statute,  it  would  probably 
be  held  that  it  was  a  fraud  upon  the  owner  of  the  equity, 
or  unrecorded  title,  for  the  agent  to  conceal  the  knowledge 
acquired  in  the  course  of  his  principal's  employment,  and  the 
principal  would  not  be  permitted  to  prolit  by  his  agent's 
fraudulent  act.^ 

§33.  How  Principal  Affected  by  Notice  to  Agent. — It  niay  there- 
fore be  confidently  stated  that  while  notice  to  an  agent  is  only 
regarded  as  the  legal  equivalent  of  personal  notice  to  the  prin- 
cipal represented  in  the  transaction  in  which  the  agent  is 
engaged,  because  of  the  legal  |3ii'esumption,  which  is  conclnsive 
upon  the  principal,  that  the  agent,  in  pursuance  of  his  duty, 
will  convey  the  information  to  his  principal ;  still,  notice  to 
the  agent  is  more  than  constructive  notice  to  the  principal. 
Even  where  actual  notice  is,  b}'  statute,  alone  sufficient  to 
affect  purchasers,  the  fact  that  actual  notice  is  brought  home 
to  the  one  who  represents  such  principal  in  the  transaction, 
would  be  as  binding  upon  him  as  though  he  had  beeii  person- 
ally notified.  And  if  the  notice  comes  to  the  agent  in  the 
shape  of  knowledge  of  circumstances  which  should  put  a  man 
of  ordinary  prudence  upon  inquiry,  the  princi))al  will,  by  im- 
plication, be  charged  with  notice  as  though  he  had  been 
personally  cognizant  of  the  facts  which  challenged  iiKpiiry 
from  the  agent.- 

§34.  Purchase  After  Fruitless  Inquiry.  —  But  where  notice  is 
implied  from  knowledge  of  ficts  which  point  with  reasonable 
certainty  to  the  means  of  ascertaining  the  truth  of  the  matter 
involved,  proof  tliat  inquiries  have  been  prosecuted  with 
reasonable  diligence,  and  the  purchaser  is  led  to  believe  in  the 

^  See  Post  Ch.  Y.,  Ft  II. 

'Bank  of  United  States  v.  Davis,  -2  Hill.  4.")1. 


ACTUAL    NOTIOK.  19 

absence  of  aiij  adveivse  claim,'  or  even  fails  to  obtain  any  fur- 
tlier  or  more  reliable  information  than  that  which  excited  his 
inquiries,^  he  may  purchase  with  security. 

§  35.  Information  Allaying  Suspicion.  —  So  where  the  attach- 
ing creditor  was  informed  by  the  debtor  that  he  had  already 
executed  a  deed  to  another,  but  that  such  deed  had  neithei" 
been  acknowledged  nor  delivered,  and  in  corroboration  of  the 
latter  statement  exhibited  the  deed,  which  was  still  in  his  own 
possession,  it  was  held  that  the  creditor  might  rely  upon  the 
truth  of  such  statement  without  further  inquiry  or  investiga- 
tion.^ 

§  36.  The  Effect  of  Reliance  on  Information  from  Doubtful 
Sources,  —  But  where  the  purchaser  and  his  agent  had  been 
advised  of  a  contract  for  the  sale  of  the  land  by  the  agent  of 
the  prior  purchaser,  which  agent  had  been  prosecuted  for  em- 
bezzling funds  in  the  transaction,  and  subsequently  informed 
the  last  purchaser  that  the  contract  with  his  principal  was 
broken  off,  it  was  held  that  the  subsequent  purchaser  had  no 
right  to  rel}^  upon  such  statements  from  so  doubtful  a  source.* 

'  Hudson  V.  Warner,  3  H.  &  G.,  415. 
".Jackson  v.  Van  Valkeuburgli,  8  Cow.,  260. 

=  Rogers  v.  .Jones,  8  N.  H.,  264;  Re  Bright's  Trusts,  31  Beav.,  430;  Jones  v. 
Smith,  1  Hare,  43 ;  S.  C,  1  Phil.,  344. 
*  Mullikeu  v.  Graham,  73  Penn.  St.,  484. 


20  DIFFKKENT    KINDS   OF    NOTICE. 


IT.  Constructive  JSTotice. 


§37.  Definitions. 
38.  Held  Same  as  Implied  Notice. 
3!).  Constructive  Notice  Prescribed  by  Statute. 

40.  Distinction  between  Diti'erent  Kinds  of  Notice. 

41.  Ditierent.  Kinds  ot  Constructive  Notice. 
43.  Inference  of  Law. 

43.  Contents  of  Writing  Known  to  Party  Executing  the  Same. 

44.  Possession  as  Constructive  Notice. 

45.  Purchaser  pendente  lite. 

46.  Recitals  in  Title  Paper. 

47.  Possession  of  Deeds. 


§37.  Definitions. —  Constructive  N ot'ice  is  defined  by  Chief 
Baron  Eyre,  as  "  in  its  nature,  no  more  than  evidence  of  no- 
tice, the  presumptions  of  which  are  so  violent  that  the  court 
M'ill  not  allow  of  its  being  controverted.'"  Judge  Story  de- 
fines it  as  "  knowledge  imputed  by  the  court  on  presumption, 
too  strong  to  be  rebutted,  that  the  knowledge  must  have  been 
communicated.' '  ^ 

§  38.  Held  Same  as  Implied  Notice. — These  definitions  exchide 
all  those  cases  where  the  legal  presumption  of  notice  is  subject 
to  rebuttal  or  explanation.  Chancellor  Kent,  however,  saj^s, 
"  I  hold  him  chargeable  with  constructive  notice,  or  notice  in 
law,  because  he  had  information  sufficient  to  put  him  upon  in- 
(piiry."^  Whatever  presumptions  of  notice  might  arise  from 
information  sufficient  to  put  the  party  upon  incpiiry,  could  be 

'  Plumb,  t).  Fluitt,  2  Anstr.,  432;  Kenedy  ».  Green,  3  M.  k,  K.,  719;  Wilde 
c.  Gibson,  1  H.  of  L.  Cas.,  COo. 
=  Story'sEq.  Jur.,  ^399. 
^Stery  «.  Arden,  1  John.  Ch.,  261. 


CONSTKUCTIVK    NOTICE.  21 

explained  away  by  showing  that,  notwithstanding  diligent  in- 
quiry was  made,  it  proved  fruitless  of  results,  or  the  iraputa- 
ticn  of  knowledge  nia}'  be  rebutted  by  proof  that  the  party  thus 
sought  to  be  charged  was  misled,  and  lulled  into  security  by 
countervailing  circumstances,  or  a  denial  of  the  information 
by  which  inquiry  was  originally  excited.  There  is  another 
definition  more  comprehensive  in  its  scope  than  either  of  the 
preceding,  and  is  laid  down  as  follows:  "Constructive  notice  is  a 
legal  inference  of  notice  of  so  high  a  nature  as  to  be  conclu- 
sive, unless  disproved,  and  is  in  most  cases  insusceptible  ot 
explanation  or  rebuttal,  by  evidence  that  the  purchaser  had  no 
actual  notice,  and  believed  the  vendor's  title  to  be  good."^ 

§  39.  Constructive  Notice  Prescribed  by  Statute.  —  While  the 
foregoing  definitions  of  this  title  are  doubtless  sufficiently  full 
and  comprehensive  in  the  connections  in  which  they  are  era- 
ployed,  they  do  not  convej^  a  distinct  idea  of  that  kind  of  no- 
tice which  is  constructive,  as  distinguished  from  that  which  is 
^c^i^i/Z,  without  reference  to  the  connection;  for  this  term  in- 
cludes not  only  the  evidence  of  notice  where  the  presumptions 
are  violent,  or  the  imputation  of  knowledge  from  presump- 
tions too  strong  to  be  rebutted,  that  such  knowledge  has  been 
communicated,  or  a  legal  inference  of  notice  of  a  high  char- 
acter ;  but  it  also  embraces  that  which  is  made  conclusive  upon 
the  party  notified  by  the  provisions  of  a  statute,  without  re- 
gard to  the  evidence  of  actual  notice,  or  the  actual  probabilities 
of  the  communication  of  the  knowledge  imputed. 

§40.  Distinction  between  Different  Kinds  of  Notice,  —  One  of 
tlie  distinguishing  features  between  these  two  kinds  of  notice, 
which  seem  to  glide  imperce})tibly  into  each  other,  is  that, 
when  the  facts  upon  which  the  presumption  is  founded  have 
been  ascertained,  the  question  of  constructive  notice  is  always 
for  the  court,^  while  the  question  of  actual  notice  is  frequently 
submitted  to  the  jury,  together  with  the  evidence  from  which 
the  inference  of  fact  is  drawn,  witlioiit   chargj   or  instruction 

'  Lead.  Cas.  Er|.  Vol.  If.  Pt.  I,  77;  (A.in.  nolc). 
MJirdsall  v.  Uussell,  3!»  N.  Y.,  3'i(). 


22  DIFFERENT    KINDS    OF    NOTICE. 

as  to  the  weight  of  the  evidence.^  Tlie  distinction  here  con- 
tended for  is  well  set  forth  by  a  learned  text-writer  in  the  follow- 
ing language:  '"  It  will  liave  been  perceived  that  the  term  con- 
sti'uctive  notice  is  here  used  in  a  soniewliat  indetinite  sense. 
The  same  is  true  in  regard  to  most  text- writers  and  judges. 
Tliis  form  of  expression  is  applied,  indiscriminately,  to  such 
notice  as  is  not  susceptible  of  being  explained  or  rebutted,  and 
to  that  which  may  be.  It  seems  more  appropriate  to  the  for- 
mer kind  of  notices.  It  will  then  include  notice  by  the  reg- 
istry, and  notice  by  lis  'pendens.  But  such  notice  as  depends 
upon  possession,  upon  knowledge  of  an  agent,  upon  facts  to 
put  one  upon  inquiry,  and  some  other  similar  matters,  although 
often  called  constructive  notice,  is  I'ather  implied  notice,  or 
presumptive  notice,  subject  to  be  rebutted  or  explained.  Con- 
structive notice  is  thus  a  conclusive  presumption,  or  a  pre- 
sumption of  law,  while  implied  notice  is  a  presumption  of  fact. 
If  this  distinction  were  carefully  preserved  by  writers  upon 
this  subject,  it  would  enable  ns  to  escape  a  good  deal  of  con- 
fusion in  regard  to  the  subject  of  notice."- 

§41.  Different  Kinds  of  Constructive  Notice.  —  The  following 
are  conspicuous  examples  of  constructive  notice  as  it  affects 
subsequent  purchasers  and  encumbrancers  of  real  estate  :  1. 
iS^otice  by  Registration  of  Instruments  affecting  the  title. 
2.  Notice  from  Title  Papers  through  which  the  title  of  the 
grantor  is  traced.  3.  Lis  Pendens.  To  which  may  be  added. 
Possession,  by  the  adverse  claimant  under  claim  of  ownership. 
All  of  which,  however,  are  separately  treated  in  the  next  suc- 
ceeding chapter.^  Publication  is  also  a  common  metliod  of 
obtaining  constructive  service,  and  for  that  reason  notice  served 
in  this  manner  is  generally  known  as  constructive  notice.^  Tliis^ 
like  registration,  is  purely  of  statutory  creation,  and  is  conse- 
quently subject  to  stiict  construction. 


'  Mayor  «&c.  v.  Williams,  6  M<1.,  285;  Trefts  r.  Kins-,  18  Penu.  St.,  157. 

«  Story's  Eq.  Jur.,  g  410a. 

3  See  Post  Ch.  II,  Parts  II,  III,  IV,  V. 

*  See  Post  Ch.  VII. 


CONSTKUCTIVE    NOTICE.  23 

§42.  Inference  of  Law.  —  The  notice  which  arises  from  legal 
inference  drawn  from  facts  and  circumstances  sufficient  to  put 
the  party  upon  inquiry,  is  only  effectual  to  charge  a  pur- 
chaser when  the  circumstances  are  of  such  a  character  that  to 
fail  in  obtaining  the  knowledge  would  be  gross  or  culpable 
negligence.^  And  this  we  have  seen  is  only  distinguished  from 
that  kind  of  actual  notice  arising  from  inference  oifact  by  the 
most  shadowy  line.^  Judge  Gibson  in  Weidler  v.  Farmers' 
Bank  of  Lancaster,^  says  that,  "constructive  notice  is  notpri??m 
facie  evidence  of  actual  knowledge  of  the  fact;  the  presump- 
tion of  notice,  when  it  arises  at  all,  being  conclusive  even 
against  the  truth  of  the  fact,  and  therefore  constructive  notice 
is  always  insufficient  to  fix  on  a  party  actual  knowledge  as  the 
gi'oundwork  of  express  fraud.  *  *  -  ''•'  There  might 
be  a  case  of  so  gross  a  nature  as  to  raise  a  presumption  from 
the  fact  itself,  that  the  judgment  creditor  knew  the  debtor  to 
be  without  color  of  title." 

§  43.  Contents  of  Writing  Known  to  Party  Executing  Same.  — 
Where  the  notice  with  which  a  party  is  sought  to  be  affected, 
is  traced  through  an  instrument  executed  by  himself,  it  mat- 
ters not  whether  such  instrument  constitutes  a  necessary  link 
in  his  chain  of  title,  he  will  be  conclusively  presumed  to  have 
full  knowledge  of  its  contents,  except  where  his  signature  has 
been  obtained  by  fraud  or  deceit.* 

§  44.  Possession  as  Constructive  Notice.  —  The  same  rules  gov- 
ern where  the  purchaser  is  charged  with  constructive  notice  by 
adverse  possession,  as  where  such  possession  is  regarded  merely 
as  evidence  from  which  the  jury  are  at  liberty  to  infer  actual 
notice.  The  possession  must  be  clear,  open,  notorious  and 
unequivocal,  at  the  time  of  the  purchase.^ 

§  45.  Purcliaser  Pendente  Lite.  —  Independent  of  the  doctrine 
by  which  purchasers  pendente  lite  are  aflected  with  construc- 

J  Ware  v.  Lord  Eginont,  4  De  G.  M.  &  (4.,  400. 

'  Ante  %  40. 

'  11  S.  &.  R,  134. 

<  Howard  Ins.  Co.  v.  Halscy,  4  Bandf.,  HO.'^;  S.  C,  8  N.  Y.,  271. 

^Meehan  xi.  Williams,  48  Pcnn.  St.,  238. 


24  DIFFERENT   KINDS    OF    NOTICE. 

tive  notice  of  the  suit,  so  as  to  bind  the  property  in  their  hands 
bv  the  judgment,  it  has  been  held  that  the  clerk  of  a  court  in 
wliich  was  pending  a  suit  for  specific  performance,  was  con- 
structively charged  with  notice  of  the  nature  of  plaintiff's 
demand.^ 

§46.  Recitals  in  Title  Papers.  —  Perhaps  as  striking  an  exam- 
ple of  the  extent  of  this  doctrine  as  could  be  found,  is  the  case 
of  Peto  V,  Hammond,^  where  a  vendor's  lien  was  retained  in 
the  deed  to  the  grantor  of  the  party  charged,  which  deed  had 
always  remained  in  the  original  vendor's  possession,  and  the 
grantee  of  the  party  against  whom  the  debt  stood  that  was 
secured  by  the  lien,  had  never  had  an  opportunity  to  inspect 
the  instrument.  Nevertheless,  it  was  held  that  he  liad  con- 
structive notice  of  such  lien,  for  the  reason  that  it  was  recited 
in  a  deed  which  foi-med  a  necessarj'  link  in  his  chain  of  title. 
But  whei'e  such  recital  is  relied  upon  as  constructive  notice,  it 
must  be  in  an  instrument  affecting  the  title  to  the  same  piece 
of  property  to  which  such  recital  refers,' 

§  47.  Possession  of  Deeds.  —  Where  the  title  deeds  necessarily 
pass  wutli  the  title,  and  strict  reliance  is  not  placed  upon  the 
registry'  of  instruments  affecting  land  titles,  notice  that  the 
title  deeds  of  an  estate  are  in  the  possession  of  some  one  else 
than  the  grantor,  is  generally  held  to  be  constructive  notice 
of  whatever  claim  the  one  in  possession  of  such  deed  had 
against  the  property.* 

'  Dickerson  v.  Campbell,  32  Mo ,  544. 
5  :^0  Beav.,  495 ;  S.  C,  8  Jur.  N.  S.,  550. 
=  Boggs  V.  Varner,  6  W.  &  S.,  469. 
"  Hiern  v.  Mill,  U  Yes.,  114. 


rUltCUASKKS    OF    Dll'KKKKN'l'    KINDS    OF    PKOPEKTY.  25 


CHArTER  11. 


IsoTrdE  TO  Purchasers. 

I.  Difference  in  Effect  op  Notice  to  Purchaseus  of  Different 

Kinds  of  Property  or  Securities. 
II.  Registration  of  Instruments. 

III.  Notice  by  Possession. 

IV.  Notice  from  Title  Papers. 
V.  Lis  Pendens. 


I.  Difference  in  Effect  of  Notice  to  Purchasers  of  Dif- 
ferent Kinds  of  Property  or  Secdrities. 


§48.  Division  of  Subject. 

49.  Pureliasers  of  Kcal  Property. 

50.  Purchaser  mila  fide. 

51.  Notice  of  Marriage  Settlement. 

52.  Parol  Contract  to  Convej'. 

53.  When  Vendee  Required  to  Perforin  in  Lieu  of  Vendor. 

54.  Notice  of  Adopted  Son's  Equity. 

55.  Prior  and  Subsequent  Contracts  to  Convey. 

56.  Pos.session  of  Title  Deeds. 

57.  Purchaser  with  Knowledge  of  Ti-ust. 

58.  Mortgagee,  with  Knowledge  of  Trust. 

59.  Notice  to  Trustee. 

60.  Notice  Prior  to  Payment. 

61.  Purchaser  without,  from  Purcha-^er  with,  Notice. 

62.  Purchaser  with,  from  Purchaser  without,  Notice. 

63.  Re-purchase  by  Original  ma'afixlc  Purchaser. 

64.  Unregistered  Conveyances. 

65.  How  Purchasers  may  be  Notified. 

66.  Same. 

67.  Purchasers  of  Chattels. 

68.  Innocent  Pledgees. 

69.  Mere  Possession  not  Conclusive  Evidence  of  Title. 


26  NCniOE    TO    PUKCHASERS. 

70.  Secret  Instructions  to  Broker. 

71.  Secret  Lien. 

72.  Conditional  Sales. 

73.  Pledge. 

74.  Condition  may  be  by  Parol. 

75.  Property  Rechiiined  in  an  Altered  State. 

76.  Caveat  Emptor. 

77.  Chattel  Mortgages. 

78.  Possession  of  Chattels 

79.  Clioses  in  Action. 

80.  Negotiable  Instruments. 

81.  Lost  Bill. 

82.  Holder  Affected  only  when  Grossly  Negligent. 

83.  Bad  Faith  Requisite  to  Defeat  Holder's  Rights. 

84.  Purchaser  without  Notice  Protected. 

85.  Same — Knowledge  a  Question  of  Fact. 

86.  Facts  which  Excite  Inijuiry  held  Inadmissible. 

87.  Circumstances  which  put  Purchaser  on  his  Guard. 

88.  Bad  Faith  an  Inference  of  Fact. 

89.  Stolen  Securities — Avoidance  of  Knowledge. 

90.  Inquiry  Excited  by  Inspectiim  of  Paper. 

91.  When  General  Nolice  Sufficient. 

92.  Suspicious  Circumstances. 

93.  Payment  Before  and  After  Notice. 

94.  Patent  Defects  affecting  Purchaser. 


§48.  Division  of  Subject.  —  It  is  a  well -recognized  rule  of 
equity  jurisprudence,  that  a  purchaser,  with  notice  of  a  right 
in  another,  is  liable  in  the  same  manner,  and  to  the  same  ex- 
tent, to  the  person  in  whom  is  the  right  of  which  he  had 
notice,  as  was  the  one  from  whom  he  purchased.  And  this 
liability  attaches  in  favor  of  such  person  whether  he  has 
united  in  himself  both  the  legal  and  equitable  titles,  or  is 
merely  the  owner  of  an  ecjuitable  interest,  with  the  legal 
title  in  the  vendor.  It  applies  to  all  classes  of  property, 
whether  it  be  real,  personal  or  mixed, — in  possession  or  in 
action.  It  is  the  purpose  in  this  place  to  show  when  and  how 
it  applies  to  these  different  kinds  of  property,  which  for  con- 
venience will  be  considered  in  the  following  order:  1.  Real 
property.  2.  Chattels  in  possession.  3.  Things  in  action, — 
with  special  reference  to  negotiable  instruments. 


PURCHASERS    OF    I)IFFP:KENT    KINDi^    <>F    PROPHRTY.  27 

^49.  Purchasers  of  Real  Property.  —  Except  where  the  statute 
otliervvise  provides,  a  purchaser  of  real  proj^erty  will  be  affocted 
by  notice  either  actual  or  constructive,  of  an  interest  or  title 
ad\erse  to  that  of  his  grantor.^  l^otice  which  is  constructively 
given  by  the  registi'ation  of  instruments  affecting  the  title, 
is  perhaps  the  most  general;  but  as  this  portion  of  the  sub- 
iect  is  more  fully  treated  in  the  next  part  of  this  chapter  it  will 
not  receive  further  attention  here.'"^ 

Jj  50,  Purchaser  Mala  Fide.  —  The  general  ground  upon  which 
courts  of  equity  interfere  for  the  protection  of  the  owner  of  an 
etjuitable  interest  in  real  estate,  as  against  the  subsecpient 
purchaser  with  notice,  is  that  it  is  in  bad  faith  for  one  to  at- 
tempt the  circumvention  of  the  true  ownei'  of  the  property,  by 
endeavoring  to  anticipate  him  in  gaining  the  advantage  to  be 
derived  from  an  acquisition  of  the  legal  title.^  Lord  Hard- 
wicKE  in  a  leading  case  upon  this  subject,  which  has  been  so 
fre([uently  cited  as  to  become  familiar  to  the  profession,  de- 
clares the  substance  of  the  rule  in  sa3'ing  that,  "the  taking  of 
a  legal  estate,  after  notice  of  a  prior  right,  makes  a  person  a 
mala  _y?c/e  purchaser."^  And  this  principle  is  applied  to  that 
case  by  the  learned  chancellor,  notwithstanding  the  fact  that 
the  purchase  declared  to  be  fraudulent  was  for  a  valuable  con- 
sideration, and  the  notice  by  which  the  purchaser  was  affected, 
was  given  to  an  agent,  and  there  was  no  evidence  that  it  had 
been  communicated  to  the  principal.'^ 

§  51.  Notice  of  Marriage  Settlement.  —  Upon  this  principle, 
where  the  defendant  purchased  an  estate  with  notice  of  the 
fact  that  it  had  previously  been  entailed  to  the  plaintiff  in  a 
marriage  settlement  by  his  father,  who  was  defendant's  grantor, 
it  M'as  held  that  such  purchaser  took  the  estate  charged  with 

'  Gerson  v.  Pool,  31  Ark.,  8r);  Haskell  v.  State,  Id.,  !M  ;  Colnuiu  v.  Watson, 
54  Ind.,  (55 ;  Lainont  ».  Cheshire,  05  N.  Y.,  80 

»  See  Post  Ch.  II,  Pt.  II. 

'Kennedy  v.  Daly,  I  Sch.  &  Lef.,  :}5o;  (Joble  v.  Nonomaker,  78  Penn.  St., 
501;  Kepler  v.  Davis,  80  /r/.,  153. 

*  Le  Neve  v.  Le  Neve,  3  Atk.,  61'i;  S.  C,  1  Ves.  Sen  ,  ()4. 

'  See  Ch.  V. 


28  NOTICE    TO    J»l'KCHASEKS. 

the  trust  wliieli  the  court  would  compel  him  to  execute,  by  ac- 
counting for  tlie  consideration  received  upon  transferring  the 
property  to  innocent  purchasers.^ 

§  52.  Parol  Contract  to  Convey.  —  So  a  purchaser  with  notice 
of  a  parol  contract,  executed  on  tlie  part  of  one  of  the  parties, 
between  the  owner  of  the  fee  under  whom  he  claimed,  and  a 
tenant  j9(2r  autre  vie,  to  change  the  cestui  que  me  by  inserting 
the  name  of  tenant's  wife  instead  of  an  older  life,  was  held  by 
decree  to  specific  performance  of  the  contract."^ 

§  53.  Wlien  Vendee  Required  to  Perform  in  Lien  of  Vendor.  — 
There  are  also  numerous  cases,  where  the  owner  of  the  equity, 
has  gone  into  possession  of  the  real  estate  under  a  parol  con- 
tract of  purchase,  which  only  becomes  the  subject  of  equitable 
enforcement,  by  reason  of  the  fact  that  there  is  a  part  per- 
formance by  tlie  covenantee  which  takes  it  out  of  the  operation 
of  the  statute  of  frauds.  In  these  cases,  the  purchasers  who 
took  with  notice  of  the  facts,  were  decreed  to  perform  pre- 
cisely as  though  they  were  the  original  contracting  parties.^ 

§  54.  Notice  of  Adopted  Son's  Eqnity.  —  And  even  where  the 
claimant's  equity  is  not  fortilied  by  possession  and  improve- 
ment, there  are  cases  of  a  peculiar  character  where  the  courts 
have  granted  relief  against  the  purchaser  with  notice.  As 
where  an  agreement  was  entered  into  with  the  father  of  an  in- 
fant son,  by  an  uncle,  to  adopt  the  nephew  as  his  own  child, 
with  provision  that  his  property  should  descend  to  such  adopted 
son,  on  the  death  of  the  uncle  and  wife.  Pursuant  to  this 
agreement  the  child  was  taken  into  the  uncle's  family,  and 
lived  with  him  until  he  reached  the  age  of  twenty  five  years. 
At  the  age  of  sixty-five  the  uncle,  in  consideration  of  the  suj>- 
port  of  himself  and  wife  for  the  remainder  of  their  lives,  con- 
veyed a  considerable  portion  of  his  property  to  his  wife's  sister. 
The  grantee,   taking  the  deed  with  notice  of  the  nejdievv's 


'  Fcrrars  v.  Cherry,  2  Vcru..  383. 

-  Crofton  V.  Orinsby,  3  Sell.  &  Lef.,  5S3;  Bry.uit  ;■.  T5  )()/.e,  5>  Ga.,  438. 

*  Daniels  v.  Davison,  1(>  Yes.,  24!);  Blatclilcy  o  Osl.oni,  33  Conn.,  22G. 


PURCHASERS    OF    DIFFEREMT    KINDS    OF    I'ROPERTY.  29 

equity,  was  held  nut  to  be  a  hona  fide  purchaser,  and  the 
nephew  was  entitled  to  relief.^ 

§  55,  Prior  and  Subsequent  Contracts  to  Convey.  — As  between 
antecedent  covenantees  and  subsequent  covenantees  with  no- 
tice, the  first  contract  will  be  enforced.  The  prior  equity  is 
entitled  to  the  same  protection  against  subsequent  purchasers 
in  bad  faith,  as  though  the  contest  lay  between  rival  claimants 
to  the  legal  title.  So,  where  one  contracted  with  two  different 
parties  to  sell  the  same  estate,  the  one  first  in  time  would  be 
entitled  to  specific  performance,  and  the  subsequent  covenan- 
tee having  obtained  the  legal  title  after  notice  of  the  prior 
equity,  was  decreed  to  convey  to  the  first  covenantee.^ 

§  56.  Possession  of  Title  Deeds.  —  It  has  been  held  in  Eng- 
land, where  the  possession  of  the  title  deeds  usually  accompa- 
nies the  title,  that  notice  that  such  deeds  were  in  the  possession 
of  another  than  the  grantor,  was  sufficient  notice  of  an  equitable 
claim  by  the  holder  of  the  deeds,  to  bind  the  property  in  the 
hands  of  the  purchaser.  Especially  is  this  so  held  where, 
with  notice  of  such  possession,  there  is  an  entire  absence  of 
inquiry  with  regard  to  the  causes  for  the  absence  of  the  title 
deeds  from  the  possession  of  the  grantor.^  But  when  it  ap- 
pears that  the  purchaser  has  been  reasonably  diligent  in  the 
prosecution  of  his  inquiries  as  to  the  reasons  for  the  possession 
of  the  title  deeds  by  one  other  than  the  grantor,  and  a  reason- 
able and  satisfactory  excuse  has  been  made  for  the  circum- 
stance, this  will  remove  the  imputation  of  fraud  or  gross  neg- 
ligence, upon  which  the  presumption  of  notice  is  founded.* 

§57.  Purchaser  with  Knowledge  of  Trust. — Where  one  with 
knowledge  of  a  trust,  or  notice  thereof  sufiicient  in  equity  to 
afiect  his  conscience,  purchases  from  the  trustee,  the  property 

'  Vandnyne  ».  Vreeland,  12  N.  J.  E(i.,  143. 

'Potters.  Sanders,  6  Hare,  1;  Taylor  v.  Stibbert,  3  Ves.,  jr.,  437;  Bryant  v. 
Booze,  55  Ga.,  438. 

'Hiern  «.  Mill,  13  Ves.,  114;  Birch  o.  Ellames,  3  Anst.,  437;  Dryden 
V.  Frost,  3  Myl.  &  Cr.,  G70. 

*  Evans  v.  Bicknell,  6  Ves.,  jr.,  173 ;  Finch  v.  Shaw,  19  Beav.,  500 ;  Dowle  v 
Saunders,  2  Hem.  &  Mill.,  242. 


30  NOTICE    TO   PURCHASEKS. 

SO  purcliased  will  still  be  subject  to  the  trust,  and  he  will  be 
held  to  be  a  trustee  for  the  benefit  of  the  person  whose  rights 
he  has  thus  sought  to  defeat.^ 

§58.  Mortgagee  with  Knowledge  of  Trust.  —  Upon  the  same 
principle,  if  a  mortgagee,  with  notice  of  a  trust,  should  obtain 
a  conveyance  from  the  trustee  in  order  to  protect  his  mort- 
jjacre,  the  orio^inal  trust  would  attach  to  the  title  in  his  hands, 
and  he  would  not  be  permitted  to  reap  an}^  advantage  by  such 
conveyance.  By  the  purchase  he  would  take  the  place  of  such 
trustee,  with  reference  to  the  title,  and  it  would  be  his  duty  to 
execute  the  trust.  To  allow  him  to  enjoy  an  advantage  from 
such  a  transaction  would  be  equivalent  to  permitting  him,  in 
order  to  save  himself,  to  commit  a  breach  of  trust. ^ 

§  59.  Notice  to  Trustee. — A  trustee  is  chargeable  with  notice  ot 
the  equities  arising  from  the  trust,  and  being  a  member  of  a 
firm,  notice  coming  to  him  in  this  manner  will  affect  his  part- 
ners in  the  same  manner  and  to  the  same  extent  as  though  they 
had  been  personally  notified,'^  for  the  Court  will  not  regard  the 
character  in  which  the  notice  was  received,^ 

§60.  Notice  Prior  to  Payment.  —  In  order  to  affect  purchasers 
it  is  not  always  necessary  that  the  notice  should  be  actually 
received  before  the  execution  and  delivery  of  the  conveyance. 
It  will  be  sufficient  if  given  before  the  payment  of  the  pur- 
chase money ,^  and  when  there  has  been  a  partial  payment  be- 
fore notice  received,  the  purchaser  will  be  affected  jpro  tanto^ 

§  61.  Purchaser  without,  from  Purchaser  with,  Notice.  —  Where 
a  purchaser  acquires  the  title  with  notice,  actual  or  construc- 
tive, of  an  adverse  title  or  interest  in  another,  although  as  be- 
tween himself  and  the  equitable  owner  he  holds  the  title  charged 
with  a  trust  in  favor  of  the  latter,  he  may  by  a  conveyance  to 

1  Maundrell  v.  Mauiidroll.  10  Ves.,  260;  1  Story  Eq.  .Jiirs..  §  .395. 

'  Foster  v.  Blackstone,  1  Mylne  &  K.,  297 ;  Sauuders  v.  DeUew,  2  Vera.,  271. 

'  Stevens  v.  Goodenoiigli,  26  Vt.,  676. 

*  Barney  v.  Currier,  1  D.  Chap.,  315. 

"  Henry  v.  Raiinan,  25  Pcnn.  St.,  354;  RiH2:i!;o]d  v.  Bryan,  3  Md.  Ch.  Dec. 
488.  ..  J      . 

•Hardin  v.  Harrington.  11  Bush  (Ky.),  367. 


PUKCilASEKS    OF    DIKFKRKNT    KINDS    OF    I'KOl'EKTY.  31 

a  honitjide  pin-cliaser  for  value,  wh<i»  has  no  notice  of  the  trusts 
with  whicli  the  property  stands  charged,  effectually  cut  off  the 
rights  of  the  equitable  claimant,  for  the  purchaser  vrithout 
notice  from  a  purchaser  who,  took  vnth  notice  will  occupy  no 
worse  position  than  one  who  innocently  purchases  from  the 
first  fraudulent  grantor.^ 

^62.  Purchaser  with,  from  Purchaser  without,  Xotice.  —  So, 
where  the  honajide  purchaser  conveys  to  another  who  has  no- 
tice of  the  equity  at  the  time  of  his  purchase,  the  title  will 
nevertheless  pass  discharged  of  the  trust  to  which  it  was  sub- 
ject in  the  hands  of  the  first  grantor. ~  For  to  merely  protect 
the  title  of  the  first  purchaser  without  notice,  and  hold  the 
property  subject  to  prior  equities,  whenever  it  subse<|uently 
came  to  the  hands  of  one  who  had  notice  of  such  equity,  would 
be  to  give  the  honest  purchaser  but  a  fruitless  advantage. 
Such  a  rule  would  deprive  the  property  of  nearly  its  entire 
market  value,  because  purchasers  without  notice  would  be- 
come more  difficult  to  find  as  the  defect  of  title  became  more 
generally  known. 

§  63.  Re-purchase  hy  Original  Mala  Fide  Purcha-ser.  — The  same 
reasons  will  not  operate  in  favor  of  the  original  purchaser  7/m^<* 
Ude^  when  he  re-acquires  the  title  after  it  has  passed  through 
the  hands  of  hona  Jide  purchasers.  By  holding  that  the  trust 
would  re-attach  in  his  hands,  but  a  single  possible  purchaser  is 
disqualified,  which  could  not  materially  affect  the  market  value 
of  the  property.  Besides,  to  extend  to  him  protection  as  an 
innocent  purchaser,  l)ecause  of  the  purgation  of  the  title  by 
passing  through  clean  hands,  would  l)e  to  facilitate  the  per- 
petration of  fraud. ^ 

^64.  Uwvjsistercd  Conveyances,  —  Notwithstanding  the  statu- 
tory provisions  by  which  the  registration  of  conveyances  is 
required  in  order  to  give  them  validity  as   against  subsequent 


^  Hawley ''•  Crjimcr,  4  Cow.,  TIT;   Hunliii   v.    llarriniitou,  11  Bu«h  (Ky.), 
567. 
2  Lowtlicr  V.  Ciirlton,  2  Alk.,  242. 
•■»  Kennedy  «.  Daly,  1  Scli.  ct  Let".,  :iT!);  liovcy  «.  Smith,  1  Ver.,  60;  ScUutt 


32  NOTICE    TO    l'LRCHA!<ERS. 

purchasers,  these  statutes  ^re  unitbrinly  construed  not  to  favor 
tliose  who  purchase  witli  notice  of  prior  unregistered  convey- 
ances.^ To  hold  otbei'wise,  would  be  to  convert  the  registry 
laws,  which  were  originally  intended  as  a  protection  against 
fraud,  into  the  most  formidable  accessories  of  fraud. - 

j>  65.  How  Purchasers  may  be  Notifleil.  —  The  methods  by 
which  notice  of  prior  equities  or  unregistered  conveyances 
may  be  given,  so  as  to  affect  subsequent  purchasers,  are  as  vari- 
ous as  the  means  by  which  knowledge  or  information  of  any 
fact  may  be  communicated,  or  by  which  persons  may  be  led  to 
believe  in  the  existence  of  such  facts.  They  include  those 
facts  and  circumstances  which  are  held  to  constitute  construc- 
tive notice,  as  well  as  those  amounting  in  the  estimation  of 
the  court  or  jury  to  actual  notice,  and  aifect  subsequent 
purchasers  and  incumbrancers  alike.  The  most  obvious 
and  direct  manner  in  which  the  subsequent  party  may  be 
warned  of  the  adverse  interest,  is  by  actual  knowledge  of  the 
prior  conveyance  or  e<|uity ;  for  in  determining  questions  of 
good  faith,  knowledge  is  regarded  as  equivalent  to  notice  of  the 
highest  degree,  though  it  may  be  otherwise  when  notice  is  re- 
quisite to  perfect  a  right,  or  put  the  person  to  whom  it  is  given 
in  default.^  Then  would  natui-ally  follow  in  their  order,  ex- 
yress  notice,  or  direct  information,  oral  or  written,  from  some 
person  in  possession  of  actual  knowledge,''  and  implied  notice  or 
knowledge  of  collateral  circumstances  sutficient  to  put  the  pur- 
chaser or  incumbrancer  upon  inquiry  leading  to  the  truth  ;^ 
and  lastly,  such  fiicts  as  would  raise  a  conclusive  presumption 


t.  Large,  6  Barb.,  373;  Story  E(i.  .Jur.,  tj  410,  and  cases  citea. 

»  See  Post  §g  326,  281,  et  seq,  autl  cases  cited. 

'  Story  Eq.  Jur.,  i^  395  et  stq. 

s  Lead.  Cas.  iu  Eq.,  Vol.  II,  Pt.  I,  148,  4tli  Am.  Ed. 

*  See  Ante  §§  6,  7. 

''  Ante%%  11, 27.  "Information  from  whatever  source  derived,  wliicli  would 
excite  apprehension  in  an  ordinary  mind  and  prompt  a  jierson  of  average 
prudence  to  make  inquiry  would  be  sufficient."  Bryant  v.  Booze,  55  Qa., 
438. 


PTIRCIIASEKS    OF   DIFFERENT    KINDS    OF    PROPERTY.  66 

of  law,  that  the  party  charged  with  notice  had  received  the 
same.^ 

§  66.  Same.  —  Embraced  within  these  different  means  of 
notice,  are  adverse  possession,  which  has  been  eonside''ed  as 
actual  notice,  and  in  some  instances  as  constructive  notice  of 
title  or  interest ;'~  Notice  from  title  paj>ers,  which  also  seems 
to  have  been  considered  as  both  actual  and  constructive,^  and 
Lis  Pendens,  which,  according  to  the  accepted  meaning  of  the 
term,  is  clearly  notice  only  by  the  aid  of  legal  presumption. 

§  6Y.  Purchasers  of  Chattels.  —  The  general  doctrine  by  which 
purchasers  of  real  estate  are  affected  with  notice  of  prior  un- 
registered instruments  affecting  the  title,  or  of  prior  equities, 
applies  in  substantially  the  same  manner  and  to  the  same  ex- 
tent to  purchasers  of  chattels  in  the  possession  of  the  vendor  at 
the  time  of  the  sale.  That  is,  when  the  purchase  is  made 
hona  fide  from  one  who  has  the  legal  title,  or  who  has  been 
clothed  by  the  owner  with  all  the  indicia  of  ownership  or 
authority  to  sell,  the  purchaser  would  be  protected.^  But  if  the 
purchase  be  made  with  notice  of  title  or  interest  in  another,  or 
with  a  knowledge  of  such  circumstances  as  would  suffice  to  put 
him  upon  inquiry  leading  to  actual  knowledge  of  such  interest, 
his  purchase  would  be  fraudulent  as  against  the  true  owner,  and 
he  would  not  be  permitted  to  profit  by  it.^ 

§  68.  Innocent  Pledgee.  —  The  case  of  Crocker  v.  Crocker,'  is 
an  illustration  of  both  propositions  in  the  next  preceding  sec- 
tion. There  the  plaintifl:  being  indebted  to  a  corporation  on 
account  of  unpaid  assessments  on  shares  of  its  stock,  and  being 


1  Ante  Ch.  I,  Ft.  II. 
« Part  III. 
» Part  IV. 

*  Part  V. 

^Saltus  v.  Everett,  30  Wend.,  207;  Crocker  ?;.  Crocker,  31  N.  Y.,  507; 
Western  Trans.  Co.  «.  Marshall,  :j7  Barb.,  500;  Parkers.  Midcllebrook,  24 
Conn.,  207. 

'Crocker  v.  Crocker,  31  N.  Y.,  507;  Woostcr  v.  Sherwood,  25  N.  Y.,  278; 
Ploughboy,  1  Gall.,  41 ;  McAnelly  v.  Chapman,  18  Tex.,  108. 

'  Supra. 

3 


34  NOTICE    TO    PUKOIIASEKS. 

a  creditor  of  the  corporation  to  an  amount  almost  equal  to  the 
amount  of  his  unpaid  assessments,  it  was  airreed  that  upon  a 
sale  of  his  stock  for  what  remained  unpaid  he  was  to  receive 
credit  for  the  amount  due  him,  and  then  pay  in  the  balance. 
In  pursuance  of  this  arrangement,  defendant,  who  was  plain- 
tifi''s  brother,  at  the  instance  and  request  of  plaintiif,  attended 
the  sale  and  bid  in  tlie  stock,  but  was  onlj  required  to  pay  the 
amount  reraaininoj  after  the  deduction  of  the  amount  due 
]3lain  tiff  from  the  corporation.  The  legal  title  was  vested  in 
the  defendant,  who  had  all  the  indicia  of  absolute  ownership; 
but  as  between  himself  and  brother,  he  held  as  trustee  for  the 
latter.  It  was  also  held  that  he  had  no  title  or  interest 
which  he  could  convey  to  a  purchaser  with  notice  of  the  trust, 
so  as  to  divest  the  beneficial  interest  of  his  cestui  que  trusty 
but  where  one  who  had  neither  actual  nor  constructive  notice  of 
such  interest,  received  certain  shares  of  suck  stock  in  pledge 
from  the  trustee,  parting  v/ith  value  thei*efor,  and  taking  the 
same  in  the  honest  belief  that  they  were  the  pi-operty  of  such 
trustee,  the  innocent  j)arty  who  was  thus  misled  by  the  fraudu- 
lent acts  of  the  trusted  agent  of  the  plaintiff  was  entitled  to 
protection  in  his  possession  of  the  stock. 

§  69.  I\Iere  Possession  not  Conclnsive  Evidence  of  Title.  —  The 
case  of  "Wooster  v.  Sherwood,^  was  where  the  subject  of  the 
sale  was  a  quantity  of  barley  in  a  brewery.  The  vendor  after- 
wards sold  the  brewery  and  contents,  giving  notice  to  the  pur- 
chaser of  the  specific  quantity  of  barle}'  to  ^vhich  plaintiff  was 
entitled.  This  passed  no  title  to  anyijortion  of  plaintiff's  bar- 
ley, to  the  purchaser  of  the  brewery,  and  a  sale  and  delivery  of 
the  same,  by  the  latter,  to  an  innocent  purchaser  for  value, 
was  held  equally  invalid,  to  divest  plaintiffs  title,  for  the  rea- 
son that  the  vendor  had  not  been  clothed  by  him  with  any 
apparent  authority  to  sell,  or  any  poAver  to  exercise  control 
over  the  ]jroperty. 

§  TO.  Secret  Instrnctions  to  Broker.  —  It  has  been  elsewhere 
held  that  where  one  purchased  goods  and   chattels  and  luid 

'  25  N.  Y.,  378. 


PUKCHASKKS    OF    DIFFERENT    KIIJDS    OF    rKOl'EKTy.  35 

them  ti'aiisferred  to  a  broker  wliose  business  it  was  to  sell 
such  merchandise,  and  tlie  broker  was  authorized  by  the  owner 
to  assume  the  apparent  right  to  dispose  of  the  property  in  the 
ordinary  course  of  trade,  the  secret  instructions  to  tlie  broker 
would  not  affect  the  rights  of  a  purchaser  who  had  no  notice  of 
them,^ 

§  Tl.  Secret  Lien.  — In  Western  Transportation  Company  v. 
Marshall,^  the  sale  was  of  a  quantity  of  grain,  which  the  court 
held  had  been  duly  delivered  by  plaintiff  onboard  defendant's 
ship,  accompanied  by  such  written  indicia,  as,  together  with 
the  possession  of  the  grain,  would  lead  others  to  believe  that 
the  purchaser  was  the  owner.  Under  these  circumstances  it 
was  held  that  one  who  purchased  without  notice  of  the  non- 
payment of  the  purchase  money,  which,  according  to  the  con. 
tract  was  to  be  paid  on  delivery,  and  the  grain  Jiaving  been  in 
the  possession  of  the  first  purchaser  for  four  days,  was  a  hona 
iide  purchaser  and  within  the  protection  of  the  law.  But  the 
learned  judge,  in  rendering  the  opinion  in  this  case,  goes  to 
the  extent  of  declaring  that  "  where  the  owner  voluntarily  de- 
livers the  possession  of  merchandise  to  a  vendor,  subsequent 
hona  fide  purchasers  from  such  vendor,  and  those  incurring 
liabilities  and  making  advances  on  the  faith  of  such  possession, 
or  standing  in  the  relation  oi  bona  fide  purchasers,  are  entitled 
to  protection  against  the  claims  of  the  former  owner,  although 
the  sale  he  conditional  and  the  purchase  price  not  paid." 

§72.  Conditional  Sales. — While  it  may  be  true,  as  in  the 
case  last  cited  it  seems  to  have  been  held,  that  a  sale  may  be 
absolute,  although  the  terms  of  payment  are  not  complied 
with  by  the  purchaser;  and  that  tlie  subsequent  vendee,  with- 
out notice  of  such  non-compliance,  will  be  protected  as  an 
innocent  purchaser,  the  doctrine  has  l)een  established  by  a  long 
line  of  decisions,  that  where  the  sale  is  conditional  in  the  sense 
that  the  pro])erty  in  the  chattels  is  not  to  pass  until  the  per- 
formance of  the  conditions,  the  mere  surrendering  of  posses- 

'  Pickcrinsr  ».  Busk,  15  East,  38. 
«37Barb..50t). 


OO  KOTKE    TO    PUKCIIASEKS. 

sion  to  the  conditional  vendee  will  not  amount  to  such  appar- 
ent authority  to  dispose  of  the  goods,  as  will  enable  hiin  to 
give  to  a  purchaser  a  title  superior  to  that  by  which  he  held. 
In  other  words,  until  the  goods  are  paid  for  (if  tliat  be  the  condi- 
tion), they  belong  to  the  original  owner,  and  altliough  the  pur- 
chaser from  the  conditional  vendee,  take  without  notice  of 
the  absence  of  title  in  his  vendor,  the  owner  may  reclaim  the 
goods.^ 

§  73.  Pledge. —  So  where  property  has  been  deposited  with  a 
person  as  a  pledge  to  secure  the  payment  of  a  sum  of  money  in 
the  future,  or  to  answer  for  the  depositor's  default  in  the  per- 
formance of  some  other  act  of  pecuniary  benefit  to  the  pledgee, 
the  contract  between  tlie  parties  will  govern  as  to  the  charac- 
ter of  the  pledgee's  possession ;  and  should  he  transfer  such 
possession  to  another,  and  attempt  at  the  same  time  to  trans- 
fer the  title,  his  act  being  in  contravention  of  the  terms  of  the 
contract  would  be  nugatory,  so  far  as  it  affected  pledgor's 
right  to  redeem,  although  the  person  to  whom  the  trans- 
fer was  made  had  no  notice  of  the  owner's  claim  or  title.'^ 
In  the  case  cited,  the  pledge  was  of  certificates  of  shares 
of  stock,  to  which  were  attached  a  blank  power  of  attor- 
ney, authorizing  the  attorney  to  sell  tlie  stock.  ISTotwith- 
standing  that  the  pledgee,  in  violation  of  the  terms  of  the 
contract,  by  filling  out  the  power  of  attorney,  clothed  him- 
self with  the  apparent  jus  disponendi,  it  was  held  that  this 
did  not  authorize  him  to  sell  without  complying  with  the  legal 
requirements  in  case  of  the  sale  of  a  pledge,  such  as  notice  to, 


'  Clark  V.  "Wells,  45  Vt.,  4 ;  Hotchkiss  v.  Hunt,  49  Me.,  213 ;  Crocker  v. 
Gullifer,  44  Me.,  491 ;  Hart  v.  Carpenter,  24  Conn.,  427 ;  Forbes  v.  Marsh,  15 
Conn.,  384;  Morris  v.  Kexford,  18  N.  Y.,  552;  Strong  v.  Taylor,  2  Hill 
(N.  Y.),  326;  Riddle  v.  Coborn.  8  Gray,  241;  Barrett  ».  Pritchard.  2  Pick.. 
512;  Whitwell  v.  Vincent,  4  Pick.,  449;  Price  v.  Jones,  3  Head.,  84;  Fifield 
r.  Elmer,  25  Mich.,  48;  Dunbar  v.  Rawles,  28  Ind.,  225;  Baker  v.  Hall,  15 
la.,  277;  Griffin  v.  Pugh,  44  Mo.,  326;  Little  v.  Page,  lb.,  412;  West  J.  P.  P. 
Co.  V.  Trenton  Car  Works  Co.,  32  N.  J.  L.,  515;  Morrill  v.  Moulton,40  Vt., 
242 ;  .Johnson  «.  Powers,  76.,  611. 

'  McNeil  V.  Tenth  Nat'l  Bank,  55  Barb.,  59. 


rUKOHASKKS    OF    DIFFEKKNT    KINDS    OF    TROPERTY.  37 

and  demand  of,  the  pledgor,  and  a  srale  to  an  innocent  pnrcliaser 
in  fraud  of  the  rights  of  the  pk^lgor  would  not  divest  the  title 
of  the  Latter.' 

§74.  Condition  May  be  by  Parol.  —  The  case  of  Clark  v. 
"Wells, "^  was  where  a  coach  had  been  left  with  a  mechanic  for 
repair,  and  he  supplied  new  wheels  to  the  vehicle,  which  were 
by  parol  agreement  to  remain  his  property  until  paid  ior. 
Before  paying  for  them,  however,  the  owner  sold  the  coach  to 
an  innocent  purchaser,  who  resuld  it  to  another;  and  although 
neither  had  notice  of  the  mechanic's  claim  to  the  wheels,  it 
was  held  that  in  tlie  absence  of  evidence  showing  laches,  on 
his  part,  he  might  reclaim  them  from  the  last  purchaser. 

§  75.  Property  Reclainieil  in  an  Altered  State,  —  Another  ex- 
ample of  the  eifect  given  to  conditional  sales,  where  unin- 
formed purchasers  or  creditors  would  be  least  likely  to  sus- 
pect the  property  and  the  possession  to  be  in  different  persons, 
is  the  case  of  Barret  v.  Pi-itchard.'^  There  the  claimant  had  sold 
wool  to  a  manufacturer,  upon  condition  that  it  was  to  be  paid 
for  in  six  months,  and  until  paid  for,  M'hether  it  remained  in 
its  original  condition,  was  manufactured,  or  in  process  of 
manufacture  into  yarn  or  cloth,  it  should  remain  the  property 
of  the  vendor.  This  was  held  to  be  a  valid  contract,  and  one 
which  could  be  enforced  by  the  conditional  vendor,  by  reclama- 
tion of  the  property  as  against  creditors  without  notice. 

§  76.  Caveat  Emptor.  —  A^^hile  it  is  not  denied  that  posses- 
sion of  personal  property,  is  priT/ia  facie  evidence  of  owner- 
ship, it  is  quite  evident  from  the  foregoing  authorities,  that 
except  where  the  statute  interposes  for  the  protection  of  inno- 
cent purchasers,  such  property  may  be  held  subject  to  secret 
claims,  and  the  title  will  be  transferred  subject  to  the  doctrine 
of  caveat  emptor.^ 

§77.  Chattel  Mortgages.  —  The  title  to  personal  chattels  is 


'  See  also,  Bui  lard  v.  Burgett,  40  N.  Y.,  314. 

«4r)  Vt.,  4. 

'2  Pick.,  5  2. 

'  ParmlM!  r,.  Catlifrwood,  :!(»  .Mo.,  47!l. 


38  NOTICE    TO    PURCHASERS. 

only  affected  by  the  re,;^istry  laws,  wliea  tlie  property  is  mort- 
gaged, or  conveyed  in  trust  as  securitj^  for  the  discharge  of  an 
obligation,  for  the  benefit  of  the  mortgagee  or  beneficiary  men- 
tioned in  the  deed  of  trust.^  As  respects  the  registry  of  chattel 
mortgages,  and  the  effect  of  such  registry  as  notice  to  subse- 
quent purchasers  and  incumbrancers,  the  rules  are  substantially 
similar  to  those  recognized  where  convej'ances  of  real  estate 
are  in  question.  In  some  of  the  States,  however,  there  is  a 
difterence  in  the  effect  of  the  registry  of  instruments  affecting 
the  titles  to  these  different  kinds  of  property,  in  this:  That 
unregistered  chattel  mortgages  are  absolutely  void,  even  as 
against  subsequent  purchasers  or  creditors  with  actual  notice 
thereof.  They  differ  from  conversances  or  incumbrances  ot 
real  estate,  for  the  reason  that  their  validity  depends  as  much 
upon  their  proper  acknowledgment  and  registration,  as  upon 
theii'  execution  and  deliver}-.^ 

§  78.  Possession  of  Chattels.  —  What  is  elsewliere  said  con- 
cerning the  doctrine  of  notice  of  prior  claims  to  real  estate, 
which  comes  from  knowledge  or  information  of  the  possession  ol 
the  property  by  the  adverse  claimant,  will  a[)ply  with  still 
greater  force  so  far  as  it  favors  such  doctrine,  to  the  [)OSsession 
of  personal  chattels. 

§79.  •  Choses  in  Action.  —  Glioses  in  action  which  inequity, 
according  to  the  law  merchant,  or  under  the  fav'oring  provis- 
ions of  statute  law,  are  assignable,  occupy  a  position  with 
reference  to  tlie  question  of  notice,  essentiall}'  different  from 
that  occupied  by  any  other  species  of  property.  AYhen  the 
subject  of  the  transfer  is  not  negotiable,  according  to  the  law 
merchant,  the  equities  subsisting  against  it  in  the  hands  of 


'  Mueller  v.  Engeln,  12  Bush  (Ky).,  441. 

'But  chattel  mortgages  will  onty  be  declared  void  ps  against  subsequent 
purchasers /or  value.  The  provisiou  of  the  statute  ro((uiring  such  instru- 
ments to  be  recfu'ded  in  order  to  give  tliem  priority  over  the  claims  of  sub- 
sequent purchasers  is  not  intended  for  the  benefit  of  those  wlio  have  paid 
nothing.  Kolil  v.  Lj^nn,  84  ]Micli.,  ;}60.  The  effect  of  recording  a  cliattel 
mortgage,  as  notice  to  purcliasers  will  follow  the  ehalteis  when  removed  to 
anotlier  state.     Hall  r.  Pillow,  31  Ark.,  32. 


PUK0HA6EKS    OK    DJFFEKENT    KINDS    OF    PKOPPJKTY.  39 

the  assignor  follow  it  into  the  hands  of  the  assignee,  whether 
he  has  notice  of  such  equities  or  not.  Where  the  transfer  of 
a  lion -negotiable  security  involves  nothing  further  than  a  mere 
change  of  title,  the  purchaser  is  at  once  subrogated  to  all  the 
rights,  and  assumes  all  the  liabilities  attendant  upon  the  owner- 
ship of  the  instrument.* 

§  80.  Negotiable  Iiistrnments.  —  But  respecting  negotiable 
instruments,  and  their  transfer,  the  purchaser  occupies  a  more 
advantageous  position  than  the  purchaser  of  any  other  species 
of  property.  It  is  true  that  even  he  will  be  affected  by  notice 
of  equities  which  would  have  defeated  the  security  in  whole 
or  in  part,  in  the  hands  of  the  original  payee ;  but  so  favor- 
able is  the  law  to  the  facile  transfer  of  negotiable  paper,  that 
it  will  not  suffer  its  assignability  to  be  obstructed  by  a  merely 
technical  notice  to  the  purchaser  that  the  obligoi-,  as  between 
himself  and  the  obligee,  has  a  defense  to  the  demand.  The 
notice  of  defenses  to  negotiable  paper,  to  affect  purchasers, 
must  therefore  be  actual  and  not  merely  constructive^  and 
must  be  of  a  higher  degree  than  circumstances  sufficient  to 
put  a  man  of  ordinary  prudence  on  inquiry.^ 

§81.  Lost  Bill.  — The  doctrine  laid  down  in  the  preceding 
section  was  substantially  announced  by  Lord  Kenyon  in  the 
early  case  of  Lawson  v.  Weston^  where  the  question  arose  upon 

'  Sanborn  'o.  Little,  3  N.  H.,  :!30. 

"^  Swift  v.  Tyson,  1(3  Pet.,  1 ;  Goodman  «.  Simonds,  20  How.,  343 ;  Bank  ot 
Pittsburgh  ?).  Neal,  22  How.,  96;  Murray  ti.  Lardncr,  2  Wall.,  110;  Magee 
«.  Badger,  34  N.  Y.,  247 ;  Belmont  Branch  Bank  ®.  Hodge,  35  N.  Y.,  65 ; 
Seybel  v.  Nat'l.  Cur.  Bank,  54  N.  Y.,  288;  Phelan  v.  Moss.,  67  Penn.,  St.,  59; 
Lake  v.  Reed,  29  la.,  258 ;  Worcester  Co.  B'k  »,  Dorchester  Bank,  10  Cush., 
488;  Brush  v.  Scribner,  11  Conn.,  388;  Woolfolk  o.  Bank  of  America,  10 
Bush,  504;  Horton  v.  Bayne,  52  Mo.,  531;  Merrick  v.  Phillips,  58  Mo.,  436; 
Hamilton  v.  Marks,  63  Mo.,  167 ;  Lawson  «.  Weston,  4  Esp.,  56 ;  Johnson  «. 
Way,  4  Am.  Law,T.58;  Morehead  «.  Gilmore,  77  Penn.  St.,  118;  Peacock  i\ 
Rhodes,  2  Doug..  611 ;  Crook  y.  Jadis,  5  Barn.  «&  Ad.,  909 ;  Backhouse  v.  Har- 
rison, 5Barn.&  Ad.,  1098;  Goodman  «.  Harvey,  4  Ad.  &  El.,  870;  Uther 
<?.  Rich,  10  Ad.  &  El .,  784;  Arhouin  v.  Anderson,  1  Ad  .  &  El.  (N.  S).,  498 ; 
Trieber  v.  Com'l  Bank,  St.  Louis,  31  Ark.,  128;  Weit  -o.  Thayer,  118  Mass., 
473. 

"4  Esp.,  56. 


40  noticp:  to  purchasers. 

a  lost  bill,  which  had  been  discounted  without  actual  notice  of 
the  rights  of  the  original  payee.  It  was  sought  to  charge  him 
with  notice  bj  proof  that  the  loss  was  advertised,  and  pay- 
ment stopped  by  notice  to  the  drawee.  As  the  bill  came  to 
the  possession  of  the  holder  who  had  discounted  it,  without 
fraud  on  his  part,  the  advertisement  was  held  not  sufficient  to 
bind  him.  The  earlier  case  of  Miller  v.  Race^  is  cited  in  sup- 
port of  the  same  principle,  but  as  that  was  decided  with  ref- 
erence to  a  bank  bill  which  circulated  as  cash,  it  could  have  no 
application  in  considering  the  question  of  notice  as  it  affects 
commercial  paper. 

§  82.  Holder  Affected  only  when  Grossly  Negligent.  —  This  doc- 
trine was  shaken  for  a  time  in  England,  by  a  case  in  which  it 
was  decided  that  where  one  discounted  a  bill  which  had  been 
advertised  as  lost,  in  the  ordinary  course  of  his  business,  under 
circumstances  which  ought  to  have  excited  the  suspicions  of  a 
prudent  man,  he  was  not  entitled  to  recover  against  the  indor- 
ser.^  But  in  a  subsequent  case  this  uncertain  and  vague  test 
was  expressly  repudiated,  with  the  concurrence  of  all  the 
judges  of  the  court  of  King's  J3ench,  and  it  was  held  incum- 
bent upon  the  drawer  of  an  accommodation  bill  upon  which 
suit  was  brought  by  the  indorsee,  in  order  to  avail  himself  of 
the  defense  that  the  bill  was  fraudulently  put  in  circulation,  to 
show  that  the  holder  had  been  guilty  of  gross  negligence.^ 
This  case  was  affirmed  at  the  same  term.*  Where  the  case  of 
Gill  V.  Cubitt,^  and  others  adhering  to  the  doctrine  there 
announced,  was  expressly  overruled. 

§  83.  Bad  Faith  Reqnisite  to  Defeat  Holder's  Riglits.  —  In  a  still 
later  case  before  the  same  court,  the  question  of  <rross  neo-lio'ence 
was  held  ])roper  for  submission  to  the  jnr^^  in  a  suit  l)etween 
the  indorser  for  value  of  a  bill  of  exclianoe  and  a  prior  party 
thereto;  but  it  was  gi\'en  as  the  opinion  of  the  court  that  this 

'  1  Bun-.,  4r>2. 

^  Gill  «.  Cubitt,  3  Barn,  ct  Ores.,  460. 
'  Crook  V.  .Tadis,  5  Birn.  &  Ad.,  00!). 
*  Baokliouse  v.  Harrison,  [b.,  10!»S. 
'  Supra. 


PIKCIIASKRS    OF    DIFFKRKM'    KINDS    OF    riioJ'Kiri  V.  41 

alone  would  not  l)e  a  siifiieient  answer  where  the  holder  had 
given  value  for  the  bill.  Bad  faith  on  the  part  of  the  purcha- 
ser was  regarded  as  an  essential  fact  to  be  established  by  the 
defendant,  and  though  gross  negligence  might  be  evidence  of 
such  bad  faith,  it  did  not  amount  to  the  same  thing.'  Sub- 
sequent English  decisions  have  reattirnied  this  doctrine  and  it 
is  now  regarded  as  the  settled  law  of  England.- 

§  84.  Ptu'chasev  without  Notire  Prnfeoted.  —  In  Swift  v.  Tjson,^ 
the  question  of  notice  was  not  fairly  at  issue;  but  it  was  there 
laid  down  by  Mr.  Justice  Story,  as  a  general  rule,  that  a  pur- 
chaser of  negotiable  paper,  in  the  ordinary  course  of  business 
and  for  a  valuable  consideration,  without  notice  of  facts  which 
would  impeach  its  validity  between  the  antecedent  parties,  if 
he  took  it  undei*  an  indorsement  made  before  the  same  became 
due,  held  the  title  unaffected  by  these  facts,  and  miglit  recover 
thereon,  although,  as  between  tlie  original  parties,  the  ti'ansaction 
was  without  legal  validity.  This  doctrine  was  there  declared 
by  the  learned  judge  to  be  so  long  and  so  well  established, 
and  so  essential  to  the  security'  of  negotiable  paper,  that  it  had 
been  laid  up  among  the  fundamentals  of  the  law,  and  no  longer 
required  argument  or  the  citation  of  authority  in  its  sup- 
port.'* 

§  85.  Same— Knowledge  a  Question  of  Fact.  —  In  citing  the 
abov'^  case,  and  making  copious  quotations  from  the  opinion 
of  the  learned  judge,  Mr.  Justice  Clifford,  in  Cioodman  v. 
Simonds,^  interprets  the  word  notice  as  there  employed,  to  be 
the  same  as  knowledge^  and  deduces  therefrom  the  rule  that 
"I^othing  less  than  ])roof  of  knowledge,  of  such  facts  and  cir- 
cumstances can  meet  the  exigencies  of  such  a  defense.  *  * 
*  *  *  And  the  question  wlietlier  the  ]mrty  had  such  knowl- 
edge or  not,  is  a  question  of  fact  for  the  jury.     *     *     *     *     * 

»  Goodniiin  v.  Harvey,  4  Ad.  &  Ell.,  870. 

*  Ante  %  80.     Case.s  cited  in  note. 
8 16  Pet,  1. 

*  Swall  V.  Clarke,  51  Cal.,  227. 
»  20  How.,  343. 

«  26.,  30"). 


42  NHTIOE    TO    rURCHAf>EJRS. 

And  the  proper  inquiry  is,  did  the  party  seeking  to  enforce  the 
payment  have  knowledge,  at  the  time  of  the  transfer,  of  the 
facts  and  circumstances  which  impeach  the  title,  as  between 
the  antecedent  parties  to  the  instrument?^  And  if  the  jury 
find  that  he  did  not,  then  he  is  entitled  to  recover,  unless  the 
transaction  was  attended  by  bad  faith,  even  though  the  instru- 
ment had  been  lost  or  stolen."' 

§  86.  Facts  which  Excite  Inquiry  Held  Inadmissible.  —  In  Wool- 
folk  V.  Bank  of  America,^  Judge  Pktor  in  rendering  the  opin- 
ion of  the  court  says:  "In  a  case  like  this,  the  defense  must 
allege  and  prove  a  knowledge  of  the  facts  constituting  the 
fraud  on  the  part  of  the  holder — that  is,  such  facts  as  would 
satisfy  one  of  ordinary  prudence  and  judgment  of  the  infirm- 
ity ill  the  bill;  and  the  evidence  of  such  facts  and  circum- 
stances on  the  part  of  the  holder,  as  would  lead  to  an  iH<piiry, 
by  which  only  the  facts  constituting  the  fraud  might  be  ascer- 
tained, is  clearly  inadinissible."  The  question  of  negligence, 
whether  gross  or  otherwise,  or  diligence  on  the  part  of  the 
purchaser  is  here  allowed  to  have  no  influence  whatever,  even 
as  a  fact  or  circumstance  by  w^hich  a  participation  in  the  fraud- 
ulent inception  or  circulation  of  the  instrument  might  be 
established  or  disproved. 

§87.  Circinustances  which  put  Purchaser  on  his  Guard.  —  In 
Cone  V.  Baldwin,''  which  was  an  action  by  the  purchasers  of  a 
negotiable  note,  against  the  maker,  it  is  conceded  that  the  de- 
fendant was  not  bound  to  prove  that  the  plaintiffs  purchased 
with  full  and  certain  knowledge  of  the  want  or  failure  of  con- 
sideration ;  but  that  if  the  circumstances  attending  the  trans- 
fer were  such  as  to  put  them  upon  their  guard,  they  were 
bound  to  make  inquiry ;  and  that  if  they  did  not,  they  pur- 

1  20  How.,  36(i. 

^  Knowledge  of  the  infirmitit's  of  a  bill  or  note  coming  to  one  ot  two 
partners  in  a  private  bank  will  be  imputed  to  the  partnership  so  that  the 
bank  cannot  be  a  bona  fide  liolder  of  such  paper.  Stockdale  v.  Keyes,  79 
Penn.  St.,  251. 

=>  10  Bush.,  304. 

^12  Pick.,54o;  see  also  CTodilard  v.  Lyman,  14  Pick.,  268. 


VriiCHA^KKS    OF    DIFFERENT    KINDS    OF    PBOPEKTY.  43 

chased  at  their  peril,  Nevertheless,  it  was  lield  in  that  case, 
that  the  mere  statement  of  the  payee,  in  transferring  the  note 
by  delivery  to  the  plaintiffs,  tliat  tliey  purchased  at  their  own 
risk,  was  not  a  circumstance  rendering  it  incumbent  upon  them 
to  inquire  into  tlie  consideration.  The  point  conceded  in  this 
case  may  hardly  be  taken  as  a  contradiction  of  the  doctrine 
laid  down  in  the  cases  previously  cited ;  though  the  principle 
upon  which  those  cases  were  determined  has  not  passed  un- 
challenged in  this  country.^  It  has  not,  however,  met  with 
sufficient  opposition  to  change  the  current  of  authority  which 
has  borne  constantly  in  a  direction  favorable  to  purchasers  of 
negotiable  paper.  One  ot  the  latest  and  best  considered  cases 
upon  the  subject  presents  the  unusual  feature  of  an  entire 
change  of  view  by  the  same  court,  not  only  with  respect  to  a 
case  involving  the  same  question,  but  in  deciding  the  same 
case.  The  judgment  of  the  trial  court  had  been  reversed  and 
the  cause  remanded,  and  the  case  went  up  the  second  time 
with  instructions  given  in  accordance  with  the  former  ruling  of 
the  appellate  court.  The  first  decision  of  reversal  w^as  expressly 
overruled  and  the  judgment  again  reversed.^  Judge  Wag- 
neb,  in  rendering  the  opinion  in  this  case,  makes  an  able  review 
of  all  the  most  important  eases,  both  English  and  Ameri- 
can, and  justifies  the  departure  of  the  court  from  the  former 
ruling  in  the  same  case,  upon  principle  as  well  as  authority ;  there 
having  been  several  cases  decided  subsequent  to  the  first  hearing 
in  Hamilton  v.  Marks,  where  a  doctrine  was  announced  incon- 
sistent with  that  under  review,  although  the  case  was  not 
expressly  overruled.^  The  conclusion  reached  by  the  learned 
judge,  is  certainly  in  harmony  with  the  views  expressed  by 
the  courts  of  last  resort  of  the  principal  States  of  the  LTnion 
as  well  as  the  Supreme  Court  ot  the  United  States. 

'  Pringle  v.  Phillips,  5  Sand.,  157;  Plamilfonc  :\hirkg,  •'2  Mo.,  78. 

"  Hamilfon  v.  Marks,  03  :\r().,  1(57 ;  But  in  Payne  i\  Flouruoy,  29  Ark.,  500,  it 
i.s  held  that  it  appearintr  from  the  note  that  it  was  made  payable  to  an  execu. 
trix  in  her  rejjresentative  capacity,  was  notice  that  it  was  a.ssets  in  licr  liands. 

MIorton  v;.  Bayne,  52  5Io.,  r):5I  ;  Corhy  d.  Butler,  o.T  Mo.,  3!)8;  >Icrrick  o 
Phillips,  58  Mo.,  436. 


44  NOTICE    TO    rURCHASEKS. 

§88.  Biul  Faith  an  Inference  of  Fact. — There  seems  to  be  a 
peculiarity  common  to  nearly  all  the  cases  in  which  this  ques- 
tion of  notice  is  raised.  The  inference  of  notice  which  is  sought 
to  be  drawn  from  circumstances  sufdcient  to  put  a  prudent 
man  upon  inquiry,  is  one  of  law  and  not  of  fact.  The  only 
question  submitted  to  the  jury  by  the  objectionable  instruc- 
tions is  whether  there  existed  such  circumstances,  and  from 
these,  if  found,  the  court  is  asked  to  instruct  the  jury  that  the 
legal  inference  of  notice  follows.  It  is  frequently  asserted  in 
those  cases  requiring  actual  notice  of  the  facts  urged  by 
the  maker  or  drawer  of  negotiable  paper,  that  the  question  of 
knowledge  or  notice,  is  one  of  fact;  and  it  is  difficult  to  imag- 
ine an  issuable  fact  which  is  not  susceptible  of  proof  by  the 
evidence  of  circumstances.  It  may  therefore  be  fairly  deduced 
from  the  authorities,  that  whatever  is  sufficient  to  satisfy  the 
iury  that  the  purchaser  took  the  security  in  bad  faith,  or  that 
he  was  willfull}-  blind  to  the  circumstances  impeaching  its 
validity,  will  warrant  the  inference  that  he  had  actual  notice  of 
the  facts. ^     This  rule  does  not  involve  the  vao-ueness  and   un- 


iPackw'Ood  «.  Gridley,  39  111.,  388;  Buckner  v.  Jones,  1  Mo.  App.,  5.38; 
Edwards  v.  Thomas,  2  Id.,  283 ;  Clerks'  Savings'  Bank  v.  Thomas,  lb.,  367  In 
this  connection,  the  case  of  Cass  County  v.  Greene,  decided  at  the  October 
Term,  1877,  of  the  Supreme  Court  of  Missouri,  and  announced  on  the  16th 
day  of  February,  1878,  is  a  noteworthy  ex;iraple.  This  was  a  proceeding  by 
injunction  to  prevent  the  negotiation  of  certain  fraudulently  issued  bonds  in 
the  hands  of  defendant,  who  claimed  to  be  an  iuucjccnt  purchaser  for  value 
before  maturity.  The  court  in  affirming  the  decree  enjoining  the  transfer 
of  the  bonds,  based  its  judgment  ui)on  the  ground  that  defendant  had  actual 
notice  of  the  Infirmities  of  the  bonds,  though  there  was  no  evidence  of 
such  actual  notice  other  than  the  inferences  to  be  drawn  from  the  conduct 
of  defendant,  and  his  opportunities  for  arriving  at  a  knowledge  of  the  facts. 
Defendant  was  not  the  first  purchaser,  and  sought  to  shelter  himself  under 
the  absence  of  notice,  both  to  himself  and  to  the  first  purchaser.  But  the 
facts  and  circumstances,  from  which  notice  to  the  defendant  was  inferred, 
pointed  with  even  more  unmistakable  directness  to  the  first  purchaser,  as 
having  notice  of  the  fraud  hy  which  the  securities  Avere  tainted.  The  bonds 
were  first  purchased  from  one  of  the  persons  originally  concerned  in  their 
fraudulent  issue,  bj'  a  banking  copartnersliip.  and  the  notice  imputed  to  the 
firm,  was  shown  by  purely  circumstanfial  evidence  to  have  been  communi- 


PURCHASERS    OF    DIFFERENT    KIMDS    OF    PROPERTY.  45 

certainty  of  the  doctrine  so  often  insisted  upon,  and  as  we  have 
seen  so  generally  repudiated,  that  the  purchaser  of  negotiable 
securities,  is  to  be  charged  with  notice  of  their  latent  infirmi- 
ties merely  by  the  existence  of  circumstances  sufficient  in  the 
opinion  of  the  jury  to  put  a  man  of  ordinary  prudence  upon 
inquiry. 

v$  S9.  stolen  Securities — Avoidance  of  Knowledge. — In  one  of  the 
later  cases  Mdiere  this  question  was  examined  by  the  Commis- 
sion of  Appeals  of  the  State  of  New  York,  in  commenting  upon 
the  error  of  the  trial  court,  in  excluding  evidence  which  it  was 
alleged  tended  to  prove  good  faith  on  the  part  of  the  purchaser, 
undue  weight  seems  to  have  been  given  to  what  might  be,  in 
cases  disclosing  parallel  facts,  a  willful  avoidance  of  the  knowl- 
edge, which,  if  communicated,  would  have  rendered  the  pur- 
chape  an  act  of  bad  faith. ^  There,  printed  notices  of  the  larceny 
c»f  certain  negotiable  securities  were  left  at  the  place  of  business 
of  the  corporation  sought  to  be  charged,  prior  to  their  purchase 
of  the  stolen  securities,  and  one  of  the  excuses  deemed  admissi- 


cated  to  one  of  its  members.  The  decisiou  in  this  case  was  held  not  to  be 
in  conflict  with  the  adjudication  of  the  same  question  last  theretofore  made 
by  the  same  court,  where  it  was  held  in  substance,  that  facts  and  circum- 
stances coming  to  the  knowledire  of  a  purchaser  for  value,  of  negotiable 
paper,  sutficient  to  put  a  man  <>t'  ordinary  prudence  upon  inquiry,  would 
not  suffice  to  affect  the  paper  in  his  hands  if  purchased  before  maturity.* 
Though  the  facts  and  circumstances  relied  on  in  this  case  were  such  as 
would  tend  to  put  a  purchaser  upon  inquiry,  and  the  defendant  testified  to 
his  want  of  knowledge  prior  to  his  purchase,  the  inference  drawn  from  the 
circumstances  was  that,  as  a  matter  of  fact,  he  had  received  notice  when  he 
made  the  purchase  of  the  bonds.  To  prove  notice,  or  knowledge,  in  a  case  of 
this  kind,  does  not  require  evidence  of  a  higher  character,  than  what  would 
be  sufficient  to  establish  any  other  disputed  fact.  In  transactions  of  tli is 
kind,  where  the  onus  of  showing  good  faith,is  cast  upon  the  purchaser  of  nego- 
tiable paper,  it  will  not  be  sufficient  for  him  to  show  that  he  did  not  know 
of  the  inflrmities  of  the  paper,  so  long  as  it  appears  that  he  holievcd  in  their 
existence.  And  the  fact  of  such  belief,  might  readily  be  inferred  from 
evidence  that  he  had  reason  so  to  believe. 
'  Seybel  v.  Nal.  Cur.  B'k.,  :A  N.  Y.,  288. 

»  Jramilion  v.  Marks,  03  Mo.,  107;  supra,  '?,  87. 


46  NOTIUK    TO    rUliCHASKKS. 

ble  ill  evidence,  for  their  utter  disregard  of  such  notices,  was 
that  the  exigencies  of  their  business  were  such,  their  dealings 
in  such  securities  so  extensive,  that  the  time  could  not  be  spared 
to  read  and  record  the  large  number  of  such  notices  left  at 
their  place  of  business,  warning  them  of  the  stealing  of  similar 
securities.  The  exigencies  of  one's  own  business,  when  adopted 
by  hira,  as  an  absolute  standard,  by  which  his  duty  to  others  is  to 
be  measured,  seems  fraught  with  danger  to  all  honest  people 
except  the  one  who  adopts  it.  A  banking  institution  in  the 
city  of  Xew  York,  understood  to  be  dealing  so  largely  in  ne- 
gotiable securities  that  its  officers  were  justified  in  ignonug  all 
warnings  with  respect  to  stolen  securities,  would  be  able  to 
offer  absolute  security  to  thieves. 

§  90.  Inquiry  Excited  by  laspection  of  Paper.  —  The  principle 
ujion  which  knowledge  or  information  of  facts  mereh'  suffi- 
cient to  put  the  party  upon  inquiry,  may  be  ignored,  has  no 
application  where  the  knowledge  is  derived  from  an  inspection 
of  the  instrument  itself,  and  points  directly  to  a  defect  which 
requires  explanation  from  the  holder.^  Neither  does  it  ap- 
l)ly  where  the  inquiry  excited  by  circumstances  may  be  prose- 
cuted to  knowledge,  by  an  inspection  of  the  instrument.  As 
Avhere  the  purchaser  has  knowledge  of  facts  showing  that  cer- 
tain securities  have  been  lost  b}^  the  holder,  or  that  lie  has  been 
fraudulently  deprived  of  the  possession  thereof,  and  the  facts 
of  which  he  has  knowledge  include  a  description  of  the  lost 
instruments,  by  numbers  or  other  distinguishing  marks;  here 
inquiry  may  be  said  to  be  necessary  in  order  to  identify  an  in- 
strument of  the  general  character  of  those  lost  or  stolen  which 
may  be  offered  him  as  one  of  the  missing  securities.  The 
inquiry,  however,  need  extend  no  further  than  the  face  of  the 
instrument;  but  if  it  falls  short  of  this,  he  purchases  at  his  peril.'^ 

>Ayer  v.  Hutoliins,  4  :\Iass.,  370;  Hall  «.  Hale,  8  Coun  ,  836. 
*  Howry  v.  Eppinger,  34  Midi.,  39;  Craft's  Appeal,  43  Conn.,  146;  Buck- 
ner  v.  Jones,  1  Mo.,  App.,  538. 


PURCIIASEKS    OK    DIKKKRENT    KfNDS    OF    I'ROPERTV.  47 

§  })1.  When  General  Notice  Sufficient.  —  In  Craft's  appeal/  two 
kinds  of  notice  are  recognized  as  sufficient  to  aftect  purchasers 
of  negotiable  paper,  transferred  before  due.  These  are  styled 
*' particular,  or  explicit,"  and  "general,  or  implied,"  corres- 
ponding substantially  to  our  classification  of  express  or  im- 
plied.' And  it  is  there  held  that  a  willful  or  fraudulent  failure 
to  inquire  into  circumstances  known  to  be  such  as  to  invite 
inquiry,  would  warrant  the  jury,  if  they  believed  from  the 
evidence,  that  such  abstinence  was  from  the  belief  that  the 
inquiry  would  result  in  finding  that  the  note  was  invalid,  in 
regarding  it  as  a  case  of  general  notice.  And  though  mere 
negligence,  however  gross  it  may  be,  is  not  regarded  as  amount- 
ing to  wnllful  or  fraudulent  blindness,  it  is  mentioned  as  proper 
for  submission  to  the  jury  in  connection  with  other  circumstan- 
ces tending  to  prove  such  general  notice;  but  if,  notwithstand- 
ing the  absence  of  such  caution  and  prudence  in  making  the 
purchase  as  should  be  exercised  in  the  ordinary  affairs  of  life, 
the  transaction  was  honest  on  the  part  of  the  purchaser,  and 
in  the  regular  course  of  his  business,  he  will  hold  the  paper 
discharged  of  ymor  equities.^ 

§92.  Suspicions  Circumstances.  —  But  the  circumstances  by 
which  it  is  sought  to  prove  that  a  purchaser  of  negotiable  paper 
took  with  knowledge  of  equities  between  the  original  par- 
ties, must  be  of  a  character,  in  themselves  suspicions.  The 
inquiry  excited  must  have  reference  to  some  matter  affecting 
the  A^alidity  of  the  instrument.  It  will  not  be  sufficient  that 
the  circumstances  attending  the  transaction  or  even  the  mem- 
oranda on  the  paper  itself,  are  unusual  or  extraordinary.  Un- 
less they  direct  attention  to  some  infirmitj^  of  the  instrument, 
it  will  be  safe  for  the  endorser  to  disregard  them.  Accordingly 
where  a  note  contained  the  memorandum,  "secured  by 
mortgage,"  this  was  held  not  sufficient  to  put  a  purchaser  upon 


'  Supra. 

'  Ante  §  5  e<  seq. 

3  BwuU  V.  Chirkc,  51  Cal.,  237. 


48  KOTICE    T(J    PIKCHASEKS. 

iiKluiry,  nor  charge  him  with  notice  of  the  contents  of  such 
niorto'ao-e.  And  the  mere  fact  that  the  mortgagee  mentioned 
in  the  mortgage  bj  which  the  note  was  secured,  was  a  difterent 
person  from  the  payee  of  tlie  note,  was  held  insufficient  tc 
make  it  the  duty  of  the  purchaser  to  inquire  as  to  the  validity 
of  the  note  J 

§  03.  Payment  Before  ami  After  Notice.  —  The  protection  af- 
forded to  purchasers  of  negotiable  instruments  before  maturity, 
is  intended  to  benefit  those  who  have  not  only  acted  in  good  faith 
and  without  notice  of  the  inlii-mities  affecting  the  instrument 
in  the  hands  of  the  original  payee,  but  have  paid  value  there- 
for. One  who  has  paid  nothing  prior  to  notice  would  not 
be  protected  in  his  purchase,  and  if  a  partial  payment  is  made, 
the  protection  will  only  extend  to  the  amount  actually  paid 
prior  to  notice,  and  as  to  that  paid  subserpiently,  he  will  be 
treated  as  a  purchaser  mala  fide? 

§  94.  Patent  Defects  Affecting  Purchasers. — Cases  are  frequently 
cited  in  support  of  the  application  to  negotiable  instruments, 
of  the  doctrine  of  implied  notice,  which  upon  examination 
appear  to  be  inapplicable  for  the  reason  that  the  matters 
therein  set  up  in  defense,  and  which  are  supposed  to  challenge 
inquiry,  are  apparent  on  the  face  of  the  instruments  and  if 
unexplained  utterly  destroy  their  negotiability.^  A  note  or  bill 
payable  to  bearer,  or  to  the  order  of  the  payee  therein  named, 
after  it  has  been  dishonored,  can  no  more  be  protected  in  the 
hands  of  a  subse(|uent  purchaser  as  negotiable  paper  transfer- 
red before  maturity,  than  though  it  had  never  contained  words 
of  negotiability.*  Therefore,  if  such  an  instrument  appears 
on  its  face  to  have  been  dishonored  by  non-payment  or  non- 
acceptance  it  drops  out  of  its  place  as  a  negotiable  instrument 
protected  by  the  law  merchant,  and  so  far  from  its  being  nec- 


'  Howrey  ■».  Eppinger,  34  Midi.,  29. 

'  Haescig  b.  Brown,  34  Mich.,  503;  Cass  County?).  Green,  supra  §88,  note. 

^  Hall  «).  Hale,  8  Conn.,  33(5. 

*  1  Daniel  Negot.  Inst.  593;  Andrews  «.  Pond,  13  Pet,  65. 


REGISTKATION    OF    INt^lKUMENTS.  49 

essary  to  bring  a  knowledge  of  its  latent  defects  home  to  the 
purchaser,  in  order  to  charge  him,  he  is  bound  bj  the  equities 
subsisting  between  tlie  original  parties  without  any  notice  at 
all.i 


II.  Registration  of  Instruments. 


§  95.  Registry  provided  for  by  Statute. 

96.  Object  of  Americaa  Registry  Acts. 

97.  Registration  Notice  to  Subsequent  Purchasers. 

98.  To  Affect  Purcliasers  must  be  Properly  of  Record. 

99.  Pre-requisite  to  Registration. 

100.  Subscribing  Witnesses. 

101.  When  Instrument  to  be  Filed. 

102.  Consequence  of  Delay  in  Filing, 

103.  Exceptional  Legislation. 

104.  English  and  Irish  Registry  Acts. 

105.  Equitable  Mortgage. 

106.  Registry  of  Marriage  Settlement. 

107.  Irish  Act. 

108.  Registered  Mortgage  and  Unregistered  Will. 

109.  Registered  Legal  Mortgage  and  Unregistered  Equitable  Mortgage 

110.  Memorandum  of  Further  Charge 

111.  Agreement  to  Mortgage. 

112.  Acknowledgment. 

113.  What  Instruments  should  be  Recorded. 

114.  Reservation  of  Right  of  Way. 

115.  Deed  of  Assignment. 

116.  Assignment  of  Lease. 

117.  Assignment  of  Mortgages 

118.  Consideration. 

119.  Instruments  not  Recordable. 

120.  Assignment  for  Benefit  of  Creditors. 


'  Fowler  v.  Brantley,  14  Pet.,  318. 
4 


50  N(VriOE    TO    rUKOHASERS. 

131.  (V'rtificntc  of  Einaiu-ipatiou. 
133.  Executory  Contract. 

133.  Same. 

134.  Statute  must  be  Complied  with. 

135.  Necessity  of  Acknowledgment. 

136.  Certiticate  of  Official  Character  Required. 

137.  Defective  Acknowledgments  Cured  by  Legislation. 
188.  Acknowledgment  Unnecessar}\ 

139.  Execution  Acknowledged  by  one  of  two  Grantors. 

130.  Officers  before  whom  Ackowledgment  Made. 

131.  Lack  of  Uniformity  in  Designating  Officers. 

133.  Acknowledgment  of  Deed  affecting  Land  in  another  State. 

133.  .Justices  of  the  Peace. 

134.  Acknowledging  Officer  a  Party  in  Interest. 

135.  Defects  must  Appear  upon  the  Face. 

136.  Officers  de  ft  do. 

137.  Attesting  Witnesses. 

138.  When  Two  Required. 

139.  Witnessed  by  One  Insufficient. 

140.  Defective  Execution  held  Immaterial. 

141.  Record  Inoperative  without  Delivery. 
143.  Delivery  after  Recording. 

143.  Same — Etlect  of  Subsequent  Delivery. 

144.  Must  be  Recorded  by  Proper  Officer. 

145.  Recorded  by  Officer  de  facto. 

146.  Same. 

147.  Effect  of  Error  in  Record. 

148.  Errors  in  Description. 

149.  Eflect  of  Filing  and  Subsequent  Error  in  Recording. 

150.  To  whom  is  the  Officer  Responsible  for  Errors. 

151.  Ditiereut  Construction  ot  the  Statute. 

153.  The  Notice  Unaffected  by  Errors  in  Recording. 

153.  Partial  Omission. 

154.  Entire  Omission. 

155.  Views  of  Early  American  Authorities,  1793. 

156.  Same— 1794. 

157.  Destruction  of  the  Records  does  not  affect  Notice. 

158.  Effect  of  Error  in  Amount  Secured  by  Mortgage. 

159.  Error  in  Description. 

160.  Fraudulent  Concealment  by  Officer 

161.  Immaterial  Errors. 

163.  Principals  Governing  Errors  in  the  Record. 

163.  Failure  to  Record  in  Proper  Time. 

164.  The  Index. 

165.  Failure  to  Index  does  not  affect  Record. 


KP:GISTRATrON    OF    INSTKL'MENTS.  51 

166.  Error  in  Index  does  not  aflect  Record. 

167.  Failure  to  Index  under  Iowa  Statute. 

168.  Index  Sufficient  to  put  uiwn  Inquiry. 

169.  Index  lield  Part  of  the  Record. 

170.  Grantee  cannot  Control  the  Officer. 

171.  Mortgagee  not  aficcted  by  Officer's  Failure. 

172.  Index  no  Part  of  the  Record. 

173.  Same — Current  of  Authority. 

174.  Misleading  Errors  in  Original. 

175.  Insufficient  Description. 

176.  Errors  in  Numbering. 

177.  Description  of  Chattels. 

178.  Description  of  Debt  Due. 

179.  Conditions  Insufficiently  Expressed. 

180.  Sufficient  Certainty. 

181.  Approximate  Certainty. 

182.  Mortgage  Securing  Future  Advances. 

183.  Description  which  may  be  Rendered  Certain  by  Inquiry,  Sufficient. 

184.  Errors  not  Misleading. 

185.  Immaterial  where  Purchaser  not  Misled. 

186.  Instruments  should  be  Filed  for  Record  in  their  True  Character. 

187.  Deed  with  Defeasance  is  Mortgage. 

188.  Defeasance  must  be  Recorded  as  Mortgage. 

189.  Parol  Defeasance,  Deed  Recorded  as  Mortgage. 

190.  Sheriff's  Deed  Recorded  as  Mortgage,  Insufficient. 

191.  Record  of  Secret  Mortgage. 

192.  Must  be  Filed  in  Proper  County. 

193.  Effect  of  Filing  in  Wrong  County. 

194.  Deposit  of  Chattel  Mortgage  in  Wrong  Town. 

195.  Change  of  County,  Subsequent  to  Filing,  will  not  affect  Registry 

196.  Order  of  Priority  between  Deeds. 

197.  Simultaneous  Mortgages. 

198.  As  between  Original  Parties,  Priority  subject  to  Stipulation. 

199.  Registration  will  not  Divest  Accrued  Rights. 

200.  Innocent  Purchaser  not  Charged  with  Notice  of  Priorities  except  by 

the  Record. 

201.  Order  of  Filing  governs  Priority. 

202.  Deed  Recorded  in  Reasonable  Time. 

203.  Subsequent  Purchasers  alone  Affected. 

204.  Record  of  Quit-Claim. 

205.  The  Instrument  must  be  in  the  Chain  of  Titte. 

206.  Same,  further  Illustrated. 

207.  Effect  of  Missing  Link. 

208.  Record  Imparts  no  Notice  of  Relations  between  Parties. 

209.  Recitals  of  Muleriul  Facts  held  Not  to  be  Notice. 


52  NOTICE    TO    I'UKCHASERS. 

210.  Example  of  Broken  Chain  of  Title. 

211.  Example  of  Contrary  Doctrine. 
21»2,  The  above  Criticised. 

213.  Sherilf  s  Deed  from  Apparent  Stranger 

214.  Record  of  Conveyance  anterior  to  Grantor's  Title. 

215.  Illustration  of  Same. 

21G.  Contrary  Doctrine  Criticised. 

217.  Purchaser  from  Heir  without  Notice  ot  Ancestor's  Unrecorded  Deed. 

218.  Reasons  Assigned  for  the  Rule. 

219.  Reasons  Assigned  for  Contrary  Doctrine. 

220.  The  Rule  Sustained  on  Principle. 

221.  Review  of  Authorities. 

222.  Weight  of  Authority  and  Governing  Principle. 

223.  Record   of  Conveyances   between  Strangers  does   not   affect   Pur- 

chasers. 

224.  Effect  of  Record  of  Instruments  aff(^cting  Chattels,  follows  Property. 

225.  Time  given  for  the  Registration  of  Deeds. 

226.  Must  be  Purchaser  for  Value. 

227.  Assignee  for  Benefit  ot  Creditors. 

228.  Creditor  Purchasing  at  Execution  Sale. 

229.  Purchasers  at  Execution  Sale  Notified  by  Registry,  "prior  to  Sale. 

230.  Interest  of  Mortgagee  not  affected  by  bidding  at  Execution  Sale. 

231.  Actual  Notice  of  Unregistered  Deed. 

232.  Purchaser  Protected  by  Good  Faith  of  Execution  Creditor. 

233.  Eiiuitable  Interference  in  favor  of  Holder  of  Unrecorded  Title. 

234.  Creditor's  Interest  held  to  Attach  from  Date  of  Levy. 

235.  Unregistered  Deeds  good  against  Creditors  with  Notice. 

236.  Notice  of  Deed  must  be  Subsequent  to  its  Execution. 

237.  Notice  of  Assignment  governed  by  same  Principle. 

238.  Judgments  given  Precedence  over  prior  Deeds. 

239.  Deed  takes  Priority  if  Registered  before  Execution  Sale. 

240.  Judgments  do  not  become  Liens  after  Conveyance  and  before  Re- 

gistiy. 

241.  Title  not  Affected  by  Recording  Deed  after  Title  Vests  in  Innocent 

Purchaser. 

242.  Reasons  for  the  above  Doctrine. 

243.  Effect  of  Re-purchase  by  Fraudulent  Grantor. 

244.  Conflicting  Decisions  as  to  Sutffcient  Notice  of  Unregistered  Deed- 

245.  Express  Notice  Required. 

246.  Actual  or  Constructive. 

247.  Different  Kinds  of  Notice  Referred  to. 

248.  Cases  holding  Notice  Ineft'ectual  against  the  Record. 

249.  Cases  holding  Imjjlied  Notice  Sufficient. 

250.  Illustration  of  Implied  Notice. 

251.  Any  kind  of  Notice  will  affect  Purchasers. 


KK(.rSTKAT10X    UK    1N.STKI.MENTS.  53 

252.  Putting  upon  Iiu|uirv  held  Insufticient. 

253.  Knowledge  of  Mortgage  withheld  from  Record. 

254.  Record  of  Instrument  affecting  f^quitable  Interest. 

255.  Effect  of  withdrawing  Deed  from  Files  before  Recording. 

256.  Priority  Secured  by  Registration. 

257.  Fraud  Practiced  by  Agent. 

258.  Vague  Information  Disregarded. 

259.  Subsequent  Purchase  not  Invaliilated  by  Notice  of  Prior  Deed. 

260.  Same— Doubtful  Authority. 

261.  Record  Chain  of  Title  Incomplete. 

262.  Assignee  of  a  Mortgage  regarded  as  Purchaser. 
268.  Time  of  Notice. 

264.  Same,  to  Attaching  Creditor. 

265.  When  Notice  too  Late. 

266.  After  Purchase  at  Execution  Sale. 

267.  Before  Legal  Title  is  Conveyed. 

268.  Time  of  Filing  for  Record  tixed  by  Statute. 

269.  Recording  after  Death  of  Grantor. 

270.  Examining  Records  Insufficient  Inquiry. 

271.  Unrecorded  Chattel  Mortgage. 

272.  Description  of  Debt  in  Mortgage. 


§95.  Registry  Provided  for  by  Statute. — The  refi^istiy  of 
instruments  atfecting  the  title  to  property,  being  provided  for 
entirely  by  legislative  enactment,  can  only  be  treated  with 
reference  to  its  effect  as  notice^  by  giving  as  near  as  may  be  the 
iudicial  construction  placed  upon  the  different  statutes.  This 
could,  no  doubt,  be  more  thoroughly  accomplished  by  copying 
each  statute  in  extenm^  and  then  giving  the  decisions  under 
them.  But  this  course  would  involve  the  necessity  of  extending 
this  treatise  to  an  unwarranted  length  for  the  doubtful  benefit 
of  presenting  a  body  of  statute  law,  which  might  be  undergoing 
changes  while  the  work  was  passing  through  the  press.  The 
most  that  can  be  safely  undertaken  in  this  direction  is  to  pre- 
sent some  of  the  most  striking  points  of  difference  in  the 
recording  acts  of  the  different  states  of  the  Union.  Those  of 
Great  Britain  are  so  essentialh'^  different  in  their  scope  and 
administration,  that  for  a  practical  work  upon  a  subordinate 
branch  of  the  law,  it  could  hardly  l)e  profitable  to  compare 
them  in  detail  with  tlie  acts  of  our  own  legislative  bodies. 


64  NOTICE    TO    VUKCIIASERS. 

§96.  Object  of  American  Registry  Acts.  —  The  general  spirit 
and  object  of  the  diifereut  American  Hegistry  Acts,  are  substan- 
tially the  same.  They  are  intended  to  furnish  the  best  and 
most  easily  accessible  evidence  of  the  titles  to  real  estate,  to 
the  end  that  those  desiring  to  purchase  may  be  fully  informed 
of  instruments  of  prior  date,  affecting  the  subject  of  their  con- 
templated purchases.  And  also  that  having  availed  them- 
selves of  this  means  of  knowledge,  they  may  rest  there,  and 
purchase  in  absolute  securit}',  provided  they  do  so  Avithout 
knowledge,  information,  or  such  suggestions  from  other  facts 
as  it  would  be  o-ross  neglio^ence  to  io-nore,  of  some  antecedent 
conveyance,  or  equitable  claim.^ 

§  97.  Registration  Notice  to  Subsequent  Purchasers.  —  It  may  be 
stated,  then,  as  a  rule  applicable  to  all  the  states,  that  where 
an  instrument  by  which  the  title  to  real  estate  is  affected  is 
properly  recorded,  the  record  thereof  is  constructive  notice 
to  subsequent  purchases  or  incumbrancers  under  the  same 
grantor.^ 

§98.  To  affect  Pnrchasers  must  be  Properly  of  Record. — But 
this  rule,  though  applicable  to  all  cases,  is  not  applicable  in  the 
same  manner,  for  the  reason  that  the  statutes  are  far  from  uni- 
form in  their  pi'ovisions  as  to  what  is  essential,  in  order  to 
render  an  instrument  propei'l}^  recordable.  If  not  recordable 
under  the  law,  it  could  not  be  treated  as  properly  recorded.* 
Many  of  them  also  differ  widely  from  each  other  in  regard  to 
the  time  from  which  the  record  operates  as  notice. 

§  99.  Prerequisites  to  Registration. — In  a  majority  of  the  states, 
the  instrument  is  entitled  to  registration  when  it  is  pro|)erly 
executed  by  the  party  to  be  bound  bj'  its  terms,  and  acknowl- 
eged  before  an  officer  authorized  to  take  acknowledgments. 
Subscribing  witnesses  are  dispensed  with  except  as  a  substitute 
for  the  acknowledgment  before  the  officer.     But  in  the  states 

'  Infra. 

^  Gushing  v.  Ayer,  25  Me.,  883;  Mason  v.  Martin,  4  Md.,  124;  Yaujrban  v. 
Greer,  38  Tex.,  530;  Mayo  v.  Cartwright,  30  Ark.,  407;  Randolph  e.  N.  J. 
West  L.  R.  R.  Co.,  28  N.  J.  Eq.,  49. 

3  See  Infra,  %  119,  et  seq. 


KKGISTRATION    OF    INSTRUMENTS.  OO 

of  Connecticut,  Delaware,  Florida,  Georgia,  Louisiana,  Mary- 
land, Michigan,  Minnesota,  New  Hampshire,  Ohio,  South 
Carolina,  Texas,  Vermont  and  Wisconsin,  the  execution  is 
required  to  be  attested  by  either  one  or  two  subscribing  wit- 
nesses.^ In  the  State  of  Louisiana  the  attesting  witnesses  are 
required  to  be  males,  and  where  the  party  is  blind  three  wit- 
nesses are  required.- 

§100.  Subscribing  Witnesses. — The  provisions  in  regard  to 
subscribing  witnesses  are  variously  modified  in  the  different 
states.  In  some  of  them  the  rule  is  quite  peremptory  and 
governs  all  conveyances  of  real  estate,  while  in  others  it  de- 
pends upon  where  the  instrument  is  executed — whether  within 
or  without  the  limits  of  the  state,  the  character  of  the  instru- 
ment, and  other  circumstances.  In  some  of  them,  too,  the 
consequences  of  a  failure  to  conform  to  the  law  with  strictness, 
in  the  matter  of  attestation,  are  more  disastrous  than  in  others, 
especially  with  reference  to  the  effect  upon  their  registration.^ 

§  101.  When  Instrument  to  be  Filed.  —  lu  general,  the  record 
operates  as  notice  from  the  date  of  filing  the  instrument  for 
record,  or  from  the  date  of  its  registration,  or  other  formality, 
deemed  sufficient  to  bring  the  knowledge  of  its  execution  and 
delivery  within  the  reach  of  any  one  who  has  an  interest  in 
making  inquiry.  But  in  several  of  the  states  the  statutes  pre- 
scribe certain  periods  of  time  within  which  the  instrument 
shall  be  deposited  with  the  designated  officer  for  record.  These 
periods  vary  in  the  different  states,  as  follows:  In  Alabama^ 
three  months;  Delavmre^  one  ye-AY\  District  of  C olumhia,  qih 
months;  Florida,  ^\x  months;  Georgia,  owe  jqqx',  Indiana, 
forty-five  days  ;  Kentucky,  sixty  days  when  executed  and 
acknowledged  within  the  state,  and  four  months,  in  cases  of  non- 
resident grantors;  Maryland,  six  months;  Neio  Jersey,  fifteen 
days;  Oliio^  six  months;    Oregon,  five  days;    Pennsylvania^ 


'  See  Statutes  of  States  mentioned. 
« Civil  Code,  La.  Art..  3281. 
^  See  cases  cited,  Infra. 


56  NOTICE    TO    I'UKCHASERS. 

wlien  withiu  the  state,  six  montlis;  when  the  deed  is  executed 
without  the  state,  one  year;  South  Carolina,  thirty  days; 
Virginia,  within  sixty  days  after  delivery  of  the  instrument. 

§  102.  Consequence  of  Delay  in  Filing. — These  provisions  are 
not  ordinarily  construed  as  fixing  periods  of  limitation,  but 
rather  as  giving  the  grantee  so  much  time,  as  days  of  grace, 
within  which  their  instruments  may  be  registered,  without  in- 
curring the  danger  of  being  cut  out  by  conveyances  from  the 
same  grantor,  during  the  intermediate  time.^ 

§  103.  Exceptional  Legislation.  —  Exceptional  acts  of  legisla- 
tive bodies  of  the  states,  may  provide  for  the  filing  of  such 
instruments  in  a  manner  to  give  pui-chasers  the  substantial  bene- 
fits of  registration  without  aftecting  them  with  constructive 
notice.  As  the  law  enacted  by  the  legislation  of  the  State  of 
]N^ew  York,  January  8,  1T94.  The  object  of  this  Act  was  to 
settle  conflicting  claims  to  bounty  lands  in  that  state.  It  pro- 
vided that  all  deeds  and  conveyances,  theretofore  executed  of 
or  concerning  such  lands,  or  whereby  they  might  be  afi'ected  at 
law  or  in  equity,  should,  on  or  before  a  day  named,  be  deposited 
with  the  clerk  of  the  city  of  Albany,  and  all  such,  except  mort- 
gages duly  registered,  not  so  deposited,  should  be  adjudged 
fraudulent  and  void  as  against  subsequent  purchasers  or  mort- 
gagees for  a  valuable  consideration.  It  was  made  the  duty  of 
the  clerk  to  keep  tliese  instruments  arranged  in  alphabetical 
order,  *'  to  the  end  that  persons  inclining  to  have  recourse 
thereto,  may  inspect  the  same,  paying  the  usual  fees  for  search 
and  inspection.''  A  subsecpient  portion  of  the  same  act  pro- 
vided for  the  registry  of  deeds  thereafter  executed;  but  it  was 
held  that  compliance  with  the  first  ])rovision  of  the  act  would 
not  charge  subsequent  ])urchasers  with  constructive  notice  of 
the  instruments  deposited  with  the  clerk.- 

§  104.  English  and  Irish  Registry  Acts.  —  Under  some  of  the 
Engli-h  and  Irish  Registry  Acts  it  has  been  decided  that   the 


'  Post,  %%  225,  268. 

'  Wendell  v.  "Wadsworih.  'H)  .Tnlins..  <;.-).^. 


KKUlJiTKATIOX    OF    IX^TKLMENTS.  57 

registry  of  ail  iustrutiieut  does  not  itself  operate  as  construc- 
tive notice  to  subse(|ueiit  purchasers.^ 

§  105.  Equitable  Mortgage.  —  So  where  a  mortgage  had  been 
duly  registered,  and  S.  subsequently  received  the  title  deeds  on 
deposit  as  security  for  a  debt  owing  by  the  mortgagor  without 
actual  notice  of  the  prior  registered  mortgage,  it  was  held 
that  the  possession  of  such  title  deeds  was  available  in  his 
hands  a?  an  equitable  mortgage  upon  the  premises,  notwith- 
standing the  formal  registry  of  the  prior  mortgage.^ 

§106.  Registry  of  Marriage  Settlement.  —  So,  also,  where  the 
law  provided  for  the  registry  of  marriage  settlements,  it  was 
held,  ill  the  case  of  Hodgson  v.  Dean,^  that  a  subsequent  pur- 
chaser of  the  land  included  in  such  settlement,  could  only  he 
affected  by  actual  notice.  It  wa?  decided  that  the  defendant 
was  not  bound  to  search  the  register,  and  therefore  could  not 
Ite  constructively  notified  of  its  contents. 

§  107.  Irish  Act.  — The  Irish  Hegistry  Act,  under  which  the 
case  of  Busliell  v.  Bushell^  was  decided,  after  providing  for 
the  registry  of  deeds  and  conveyances,  declared  "  that  lavaYy 
such  deed  or  conveyance,  a  memorial  whereof  shall  be  duly 
registered  according  to  the  rules  and  directions  in  this  act 
prescribed,  shall  be  deemed  and  taken  as  good  and  effectual, 
both  in  law  and  equity-,  according  to  the  priority  of  time  ot 
registering  such  memorial  for  and  concerning  the  lionors, 
manors,  ifcc,  in  such  deed  or  conveyance  mentioned  or  con- 
tained, according  to  the  right,  title  and  interest  of  the  person 
so  conveying,  etc.,  against  ail  and  every  other  deed,  convey- 
ance or  disposition  of  the  honors,  &c.,  or  any  part  thereot, 
comprised  or  contained  in  any  such  memorial  as  aforesaid." 
Still  this  was  not  deemed  sufficient  to  constitute  such  registry 
constructive  notice  to  subsequent  purchasers  of  the  pro]>erty 


'Hodgson  ?).  Dean,  2  Sim.  &  Stu..  23T;  Unclerwood  v.  Lord   Courtown 
2  Sclioales  »fc  Lefroy,  41 ;  Bushell  v.  Busliell,  1  Id.,  90,  103. 
''Wisoman  v.  Westland,  1  Young  &  Jervis,  117. 
'  Supra 
*  Supra 


58  KOTICE    T<»    PUKCHASKKS. 

included  in  the  memorial,  and  he  would  not  be  bound  except 
by  actual  notice. 

§  108.  Registered  31<>rtgage  and  Unregistered  Will.  —  A  more 
recent  case  arising  under  the  Registry  Act  fertile  East  Riding 
of  Yorkshire,^  seems  to  present  a  view  of  the  law  somewhat 
more  favorable  to  the  tenant  whose  evidence  of  title  is  regis- 
tered, than  is  accorded  to  him  in  the  earlier  English  cases 
cited.  It  is  decided  that  a  mortgagee  whose  mortgage  has 
been  duly  registered  shall  prevail  against  a  devisee  in  an 
uin-egistered  will  which  was  discovered  subsequent  to  the  regis- 
tration of  the  mortgage  given  by  the  heir,  and  after  the  time 
within  which  the  Registry  Act  required  wills  to  be  registered 
in  order  to  be  valid  against  conveyances  from  the  heir.  The 
statute  also  provides  that  where  there  is  an  impediment  to 
the  registration  of  the  will  within  the  time,  that  the  registra- 
tion of  a  memorial  of  such  impediment  will  preserve  the 
rights  of  devisees  as  though  the  will  itself  had  been  regis- 
tered,  until  such  time  as  the  impediment  is  removed.  It  was 
held  in  the  case  cited  that  the  failure  to  discover  the  will  was 
such  an  impediment  as  was  contemplated  by  the  Act,  and  be- 
cause the  devisees  who  were  ignorant  of  their  interests  in  the 
premises  did  not  deposit  for  registration,  a  memorial  of  the 
impediment  to  the  registration  of  the  subsequently  discovered 
will,  that  instrument  was  void  as  against  the  subsequent 
mortgagee  without  notice." 

§  109.  Registered  Legal  Mortgage  and  Unregistered  Equitable 
Mortgage. —  So  under  the  Registry  Act  for  Ireland  in  a  recent 
case,^  whore  the  owner  of  an  estate  had  ci'eated  an  unregistered 
e(putable  mortgage  upon  his  estate  b}'  the  deposit  of  the  title 
deeds,  such  equitable  moitgage  was  postponed  to  a  subsequent 
registered  legal  mortgage.  And  it  was  fui'ther  held  that  such 
legal*  mortgage  could  not  be  succe>sfully  assailed  upon  the 
ground  that  the  solicitor  employed  to  draw  the  same,  accepted 

'  Chadwick  /;.  Turner.  1  Cli.  Ap.  ('as.,  ;510. 

"See  WyaU  c   Barwell,  19  Ves.,  4;S5. 

3  Agra. 'Bank  i\  Barry,  L.  R.,  7  H.L.,  135. 


KEGISTBATION    OF    INSTRUMPJNTS.  5!) 

a  frivolous  excuse  for  the  absence  of  the  title  deeds,  and  drew 
the  mortgage  from  memoranda  of  the  contents  of  the  deeds 
furnished  by  the  mortgagor.  It  was  held  to  be  inconsistent 
with  the  policy  of  the  Irish  registry  law,  to  impose  on  a  mort- 
gagee or  purchaser,  the  duty  of  inquiry,  with  a  view  to  the 
discovery  of  previous  unregistered  interests. 

§  110.  Memoraiulum  of  Further  Charge.  —  So,  also,  where  a 
mortgage  was  given  on  lands  in  Yorkshire  and  was  duly 
registered  under  the  act,^  and  a  subsequent  memorandum  of 
"further  charge"  on  the  same  property  in  favor  of  the  mort- 
gagee for  additional  advances  was  made;  although  no  amount 
was  mentioned  in  the  mortgage,  the  memorandum  was  deemed 
a  proper  instrument  for  registry,  and  not  baing  registered  was 
postponed  to  a  subsequent  registered  mortgage  in  favor  of  a 
mortffao^ee  without  notice  of  the  further  charge.  ^ 

§  11].  Agreement  to  3Iortgage. —  An  unregistered  agreement 
to  give  a  mortgage  on  lands  in  a  register  county  was  held  pur- 
suant to  tlie  registrj^  act  ^  to  be  a  proper  subject  for  registration, 
and  was  accordingly  postponed  to  a  subsequent  registered 
mortgage,  taken  without  notice  of  the  unregistered  agreement- 

§  112.  Acknowledgment.  —  The  Recording  Acts  of  the  States 
of  this  Union,  uniformly  require  instruments  offered  for 
record,  to  be  duly  acknowledged  before  an  officer  autliorized 
by  law  to  take  acknowledgments.  And  though  the  officers  des- 
ignated bylaw  to  receive  such  instruments  for  record  have  no 
judicial  authority  to  determine  whether  they  are  legally  en- 
titled to  registry,  and  consequently  receive  and  file  such  as  are 
•offered,  reg^ardless  of  lefjal  defects  in  their  execution  or  ac- 
knowledgraent,  yet  a  failure  to  comply  with  these  formal 
prerequisites  on  the  part  of  a  grantee  generally  has  the  eifect 
to  invalidate  the  record  as  constructive  notice  to  subsequent 


'  2  and  :5  Anne,  Ch.  4. 

-^  Cmlland  v.  Potter,  18  Eq  ,  Cas.  .350;  S.  C.  Afln-iiic<l,  10  Ch.  Ap.,  Cas.  8. 
'5  Anne,  Ch.  18. 
*In  re  Wright's  MortgajL'-e  Trust,  lO  E<(.,  C&a.  41. 


GO  NOTICE    TO    PURCHASERS. 

purchasers.'  It  is  not  sufficient  that  the  genuineness  of  the 
signature,  or  even  the  fact  that  the  execution  was  properly 
acknowledged,  can  be  established  by  evidence.  All  this  must 
appear  in  the  official  certificate  attached  to  the  instrument,  and 
be  spread  upon  tlie  records  in  order  that  the  record  shall  ope- 
rate as  constructive  notice. 

§113.  What  Instruments  Should  be  Recorded. — In  construing 
some  of  the  registry  acts,  of  the  States  of  the  Union,  it  has 
been  held  that  only  instruments  by  which  the  legal  title  to 
the  premises  was  conveyed,  were  entitled  to  registration.^  But 
the  prevailing  rule  now  is  that  any  instrument  by  which  an 
equitable  interest  in  the  property  is  afibcted,  or  a  right  arising 
out  of  the  propert}^  is  granted  or  reserved  should  be  recorded, 
and  if  executed  with  all  the  formalities  prescribed  by  law,  the 
record  will  be  constructive  notice  to  subsequent  purchasers  or 
incumbrancers,  to  the  same  extent  as  the  record  of  a  convey- 
ance of  the  legal  title.^ 

§114.  Reservation  of  Right  of  Way.  —  So  where  a  right  of 
way  was  by  agreement  reserved  out  of  land,  conveyed  by  a 
deed  in  which  no  mention  of  the  reservation  was  made,  it 
was  held  that  an  innocent  purchaser,  for  a  valuable  consider- 
ation, from  the  grantee,  was  not  charged  with  notice  of  such 
reservation  because  the  same  had  not  been  reduced  to  writing, 
and  filed  for  record  as  was  required  of  instruments  affecting 
the  title  to  the  land  itself.^  The  same  rule  would  hold  good 
of  other  easements  either  granted  or  reserved. 

§115.  Deed  of  Assignment.  —  It  has  also  been  held  that  a 
deed  of  assignment  in  trust  for  the  benefit  of  creditors  may 
be  recorded.     And  in  the  absence  of  fraud,  such  record  would 


1  Herndon?).  Kimball,  7  Ga.,  432;  Graves  v.  Graves,  6  Gray,  391;  Selking 
«.  Hebel,  1  Mo.,  App,  340. 

"  Halstead  «,  Bank  of  Kentucky,  4  J.  J.  Marsh,  554. 

»  Parkist  ®.  Alexander,  1  .Johns.  Ch.,  304 ;  U.  S.  Ins.  Co.  v.  Shriver.  3  Md., 
Ch.,  381 ;  Alderson?).  Ames,  G  Md.,  52 ;  Russel's  Appeal,  15  Peun.  St.  319 ;  Bel- 
las V.  McCarty,  10  Watts,  13. 

*  Bush  ^).  Golden,  17  Conn.,  594 


KEGIftTKATIUN    OF    INSTKUMiSNTS.  61 

be  sufficient  notice  to  the  creditors  affected  by  the  convey- 
ance.^ 

§  116.  Assignment  of  Lease.  —  So  where  a  lease  of  real  estate 
is  transferred  by  a  separate  instrument,  suchinstrumentbeinga 
transfer  of  an  interest  in  land,  is  properly  recordable,  and  when 
the  statute  is  complied  with  in  respect  to  the  acknowledg- 
ment and  other  prerequisites,  and  the  description  is  sufficiently 
certain  to  identify  the  premises  as  those  contained  in  the  lease, 
tlie  record  will  operate  as  notice  to  subsequent  purchasers.^ 

§  117.  Assignment  of  Mortgage.  — And  where  the  statute  de- 
clared that  assignments  of  mortgages  "  ynay  be  recorded " 
without  special  provision  for  the  record  of  such  assignments 
operating  as  notice,  although  the  language  was  mandatory  as 
to  such  records  being  received  in  evidence,  it  was  decided  that 
such  records  would  be  notice  to  subsequent  purchasers,  or 
assignees,  the  same  as  though  the  provisions  of  the  statute  had 
been  imperative  in  requiring  the  registry  of  assignments.^ 

§118.  Consideration.  —  The  fact  that  such  a  deed  is  without 
consideration,  or  has  only  such  consideration  as  at  common 
law  is  called  good  as  distinguished  from  iialuahle,  does  not 
disentitle  it  to  registry;  and  being  recorded  after  all  the  requi- 
site formalities  have  been  complied  with,  the  record  operates 
as  notice,  as  though  the  conveyance  were  for  a  valuable  con- 
sideration.* Of  deeds  of  this  class,  those  from  husband  to  wite 
are  instances,  and  the  record  of  such  deeds  has  been  held  to 
stand  upon  the  same  footing  as  to  notice,  as  the  record  of  any 
other  conveyance.^ 

§  119.  Instruments  not  Recordable. — But  an  instrument  which  is 
not  required  to  be  recorded  nor  even  mentioned  in  the  statutes 
among  those  which  may  be  recorded,  would  not  be  regarded 
as  one  contemplated  by  the  legislature  as  a  recordable  instru- 

'  Farquharson  v.  Eichelberger,  15  Md.,  68. 
""  Martindale  v.  Price,  14  lud.,  115. 
'  Pepper's  Appeal,  77  Pa.  St,  873. 

*  Mayor  v.  Williams,  G  Md,  235;  Williams  v.  Banks,  11  Id,  198;  Cook's 
Lessee  v.  Kell,  13  Md,  4G9. 
» Wilder  v.  Brooks,  10  Minn,  50;  Digman  ®.  McCollum,  47  Mo.,  872. 


62  NOTICE    TO    PUKOHASEKS. 

iiieiit,  conse(j[uentlj  should  it  be  copied  upon  the  records,  such 
copy  would  not  amount  to  constructive  notice  to  any  one.^ 

§  120.  Assignment  for  Benefit  of  Creditors.  —  So  where  a  deed 
of  assignment  for  the  benefit  of  creditors  was  not  required  by 
law  to  be  recorded,  the  record  of  such  deed  was  held  not  to  be 
notice  to  those  who  might  purchase  in  ignorance  thereof." 

§  121.  Certificate  of  Emancipation.  —  So,  also,  was  it  held  that 
a  certificate  of  emancipation,  was  an  instrument  not  required 
to  be  recorded  nor  entitled  to  record.^  And  the  same  was  held 
regarding  a  deed  to  a  slave,  though  it  was  decided  that  the 
recording  of  such  deed  was  sufficient  to  rebut  the  idea  of  con- 
cealment, and  might  be  ottered  in  evidence  as  a  circumstance 
tending  to  prove  actual  notice.* 

§122.  Executory  Contract. — An  executory  contract,  except 
where  its  registry  is  provided  for  by  law,  would  gain  nothing 
by  being  recorded.  Such  record  would  not  be  notice  of  the 
existence  of  such  contract  to  any  persons  except  those  who 
actually  saw  the  same.^ 

§  123.  Same.  —  And  even  where  the  Xew  York  statute  made 
provision  for  the  registry  of  such  contracts,"  it  was  held  that 
the  record  did  not  constructively'  impart  notice  to  any  one, 
because  the  statute  providing  for  their  registry,  was  merely 
to  preserve  the  evidence  of  the  contract,  and  not  to  give  notice 
of  its  existence." 

§124.  Statnte  must  be  Complied  with. — The  requirements  ot 
the  statute,  both  in  regard  to  the  official  character  of  the 
acknowledging  officer  and  the  contents  of  his  certificate,  must 


'  .James  0.  ]\[ore.v,  2  Cow.,  246;  Villard  y.  Robert,  1  Strob.  Eq.,  393;  Mo- 
reau  v.  Detchemendy,  18  Mo.,  522 ;  Parker  v.  Hill,  8  Mete,  447 ;  Joues  v. 
Roberts,  65  Me.,  273 ;  Parret  v.  Shaubhut,  5  jNIiau.,  323 ;  Washbura  v.  Burn, 
ham,  63  N.  Y.,  301. 

■■'Burnham  v.  Chamller,  15  Tex.,  441. 

*  Commonwealth  v.  Roles,  6  B.  Monr.,  171. 

*  Bossard  v.  White,  9  Richardson's  Eq.,  483. 
5  Messick  v.  Sunderland,  6  Cal.,  297. 

« 1  R.  S.  702,  ^  2!). 

'  Washburn  «.  Bunibam,  63  N.  Y.,  132;  Boyd  v.  Sehlosin<?er,  59  Id.,  301. 


REGISTRATION    OF    INSTRUMENTS.  63 

be  complied  with  in  every  sul^staiitial  particular,  or  the  record 
of  the  instruiuent  will  be  inoperative  as  constructive  notice.^ 

§  125.  Necessity  of  Ackonwledgnieiit.  —  In  many  instances  this 
construction  of  the  statute  has  seemed  to  work  hardships  upon 
those  who  had  purchased  upon  the  faith  of  the  record  title. 
But  not  only,  is  the  construction  given  to  the  statute  by 
the  courts,  strictly  defensible,  but  tlie  statutory  provision 
itself  is  dictated  by  the  highest  considerations  of  security  to 
owners  of  real  estate.  Were  it  not  for  this  check  upon  human 
cupidity  the  records  might  be  cumbered  with  fraudulent  con- 
veyances from  supposititious  grantors,  which  while  they  failed 
to  clothe  the  g-rantees  with  even  a  shadow  of  title  would  suffice 
so  to  becloud  the  titles  of  those  who  were  purchasers  from  the 
true  owners,  as  to  frighten  timid  purchasers  and  depreciate  the 
value  of  property.  So,  too,  is  this  wise  provision  a  wholesome 
restraint  upon  forgeiy.  The  commission  of  this  crime  is 
rendered  less  easy  and  safe  when,  to  make  it  effective,  it 
becomes  necessary  for  the  forger  to  take  a  public  officer  into 
his  confidence. 

§  126.  Cei'tifleate  <»f  Official  Character  Required.  —  Following 
this  principle  of  construction,  of  a  statute  requiring  the  cer- 
tificate of  a  clerk  of  a  court  of  record,  where  the  acknowledg- 
ment was  before  a  notary  public  in  another  state,  to  the 
genuineness  of  the  notary's  seal  and  certificate,  it  was  held  that 
a  deed  acknowledged  beyond  the  limits  of  the  state  before  a 
notary  whose  official  character,  etc.,  was  not  so  certified,  was 
improperly  admitted  to  record,  and  did  not  operate  as  construc- 
tive notice.'^ 

§127.  Defective  Acknowledgments  Cured  by  Legislation.  —  In 
some  of  the  states,  however,  legislation  has  come  to  the  relief 
of  defectively  acknowledged  instruments.     The  general  tenor 


'Shultsi;.  Moore,  1  McLean,  r)2();  Zeinler  v.  Shomo,  78  Penn.  St.,  357; 
Pringle  v.  Dunn,  :^7  "Wis.,  449 ;  (4al  pins.  Abbott,  6  Mich.,  17 ;  Graves  v.  Graves, 
6  Gray,  :^J)1. 

'  Musgrove  v.  Boiiser,  5  Oregon,  -Mo. 


64  NOTICE    TO    PURCHASKRS. 

of  these  curative  acts,  is  that  tVoiii  tlie  taking  effect  of  the 
statute  all  instruments  previously  recorded,  defectiv^ely  ac- 
knowledged or  attested,  or  not  acknowledged  and  attested  at 
all,  should  operate  as  constructive  notice  to  purchasers  to  the 
same  extent  as  though  they  had  been  properly  acknowledged. 
Notwithstanding  the  apparent  retrospective  operation  of  stat- 
utes of  this  kind,  they  have  nniformally  been  approved  by  the 
courts  and  sustained  as  constitutional.^ 

§  128.  Acknowledgment  Unnecessary.  —  Under  statutes  which 
may  fairlj''  be  regarded  as  exceptional,  the  record  of  a  deed  has 
been  held  to  operate  as  constructive  notice  to  subserpient  pur- 
chasers though  defectively  acknowledged.^  And  where  the 
statute  provided  that  no  instrument  aifecting  real  estate  should 
be  of  any  validity  against  subsequent  purchasers  for  a  valuable 
consideration  without  notice,  unless  recorded,  and  that  where  a 
deed  had  been  acknowledged  and  certified  in  the  manner  pre- 
scribed by  law,  the  original  might  be  read  in  evidence  without 
further  proof  of  the  execution;^  it  was  held  that  as  the  statute 
was  silent  as  to  the  matter  of  acknowledgment  as  a  prerequisite 
to  the  registry  of  the  deed,  and  only  required  this  formality 
as  a  condition  to  its  being  read  in  evidence  without  proof  of 
execution,  a  deed  in  fact  registered,  even  though  it  were  not 
acknowledged,  would  lie  constructive  notice  to  subsequent 
grantees  who  purchased  for  value,  and  without  actual  notice.'' 

§  129.  Execution  Acknowledged  by  one  of  Two  Grantors. — And 
even  in  a  case  where  the  statute  required  the  instrument  to  be 
acknowledged  to  render  its  registry  effective  as  notice  to  subse- 
quent purchasers,  it  was  held  that  an  acknowledgment  by  one 
of  two  grantors  met  all  the  requirements  of  the  statute,  so  as 
to  render  the  record  of  the  deed  not  only  constructive  notice 

'  Watson  V.  Mercer,  8  Peters,  88 ;  Tate  v.  Stooltzfoods,  16  Serg.  &  Kawle 
35;  Wallace  &  Moody,  26  Cal.,  387;  Logan  y.  Williams,  76  111..  175;  Gate- 
wood  V.  Hart,  58  Mo.,  261 ;  Allen  v.  Moss,  21  Mo.,  354. 

'  Gillespie  v.  Keed,  3  McLean,  377;  Reed  r.  Kemp,  16  111.,  445.  (Under  Stat. 
July  21,  1827.) 

'  C!omp.  Laws,  Kansas,  p.  355. 

*  Simpson  v.  Mundee,  3  Kan.,  172;  Brown  v.  Simpson,  4  Kan.,  76. 


KKGISTRATION    OF    INSTRUMENTS.  65 

of  the  conveyance  of  the  interest  of  the  grantor  who  acknowl- 
edged the  deed,  but  also  the  interest  of  the  one  who  failed  to 
acknowledge.^  The  reasoning  in  this  case  was  that  the  object 
of  the  statute  being  to  give  publicity  to  conveyances,  that  object 
was  attained  whenever  the  deed  was  placed  upon  record,  and  it 
could  not  have  been  recorded  without  authority,  because  when 
it  was  acknowledged  by  one,  its  registry  M'as  authorized  as  to 
him,  and  it  was  quite  clear  that  his  conveyaTice  could  not  be 
recorded  without  recording  that  of  the  other  grantor. 

§  130.  Officers  before  whom  Acknowledgment  made. — The  officers 
empowered  to  certify  to  the  acknowledgment  of  instruments 
for  record  as  designated  by  the  recording  acts  of  the  various 
states, are  numerous  and.  diverse  in  their  characters.  But  per- 
haps the  most  universally  recognized,  as  well  as  the  most 
generally  resorted  to,  are  [Notaries  Public.  In  addition  to 
these  are  Judges,  including  Justices  of  the  Supreme  Court  of 
the  United  States,  and  of  the  different  states  and  territories, 
county  and  Probate  Judges,  and  nearly  all  judicial  officers  of 
intermediate  degree.  Another  class  that  is  quite  generally 
recognized  are  Justices  of  the  Peace,  These,  as  well  as  most 
other  officers  who  do  not  use  a  seal  to  authenticate  their  official 
acts,  are  less  frequently  employed  for  the  reason  that  it  is 
generally  necessary,  when  the  instrument  affects  property  in 
another  state,  to  fortify  their  certification  of  the  acknowledg- 
ment by  the  certificate  of  the  clerk  of  a  court  of  record,  that 
such  officer  had  been  commissioned  and  qiialified,  and  that  his 
signature  is  genuine.  Besides  those  already  mentioned  are 
Chancellors,  Clerks,  Mayors,  Masters  in  Chancery,  Court 
Commissioners,  Prothonotaries,  foreign  ministers,  Co«isuls, 
and  other  diplomatic  officers  and  commissioners  especially 
appointed  for  that  purpose  by  Governors  of  different  states. 
Even  Surveyors,  and  army  officers  of  the  rank  of  Major,  or  of 
higher  rank,  have  been  designated  in  some  instances. 

§  131.  Lack  of  Uniformity  in  Designating  Officers.  —  It  may  not 
be  out  of  ])lace  to  remark   here  that   much  of  the  apparent 

'  Shaw  V.  Poor,  (J  Pick.,  80. 
5 


t')H  NOTICE    TO    rUR(;MA'l':KS. 

liarshness  in  the  operation  of  the  recording  acts  arises  tVoni 
mistake  in  selectintf  the  officers  before  vvliuin  acknowledojnients 
are  made.  These  misfortunes  are  owing  to  a  want  of  uni- 
formity in  the  statutes  of  the  different  states.  And  it  is  no 
consolation,  l)ut  rather  an  aggravation,  to  reflect  that  the  diver- 
sities have  no  better  foundation  than  local  caprice. 

§  132.  Acknowledgment  of  Deed  affecting  Land  in  anotlRT  State. 
—  When  the  instrument  executed  in  oue  state  affects  the  title 
to  land  in  another,  the  law  of  the  state  where  the  land  lies,  ot 
course,  will  govern,  and  not  that  of  the  ])lace  where  the  instru- 
ment is  executed  and  acknowledged.  As  the  validity  of  the 
record  depends  in  no  small  degree  upon  the  officer  whose 
certificate  authenticates  the  acknowledgment,  the  sek^ction  ot 
the  proper  one  becomes  a  matter  of  im])ortance. 

§  133.  Justices  of  the  Peace. — It  has  been  held  under  a  statute 
limiting  the  jurisdiction  of  justices  of  the  peace  to  taking  the 
acknowledgments  of  such  instruments  as  affected  lands  lying 
within  their  own  counties,  that  where  the  acknowledgment  was 
taken  before  a  justice,  to  a  deed  of  land  in  another  county, 
the  record  of  such  deed  failed  to  impart  constructive  notice.^ 

§  134.  Acknowledging  Officer  a  Party  in  Interest.  —  So,  also, 
when  there  is  any  circumstance  that  disqualifies  the  officer 
Ironi  acting  in  the  particular  instance,  the  record  will  be 
vitiated.  As,  when  on  the  face  of  the  deed  it  appeared  that 
the  acknowledgment  was  before  a  i)arty  in  interest,  it  was  held 
to  be  improperly  recorded,  and  that  the  record  did  not  impart 
constructive  notice  to  subsequent  purchasers."^ 

§  135.  Defects  must  Appear  upon  the  Face.  —  It  would  be 
otherwise,  however,  where  the  instrument  was  lair  upon  its 
face, as  the  record  will  impart  notice,  notwithstanding  hidden 
defects  in  the  execution  or  acknowledgment.^ 

§  136.  Officer  I)e  Facto.  —  But  whei'e  the  acknowledgment  is 
certified  by  an  ofilcer  de  facto  though  he  be  a  usurper  of  the 

1  Bishop  V.  SL-lim-icler,  4(1  Mo.,  473;  Musick  c.  Barn  y.  4!)  .Mo.,  458;  GmIc- 
wood,  i).  Ilart,  58  Mo.,  201. 

^  Stevens  v.  ilamptou,  4<J  Mo.,  4(J4 
'  Ibid. 


RKGISTRATION    OF    INSTRUMENTS.  G7 

<.>rtice,  if  the  jurisdiction  extends  to  the  taking  of  acknowledg- 
ments, the  instrument  will  be  properly  recorded,  and  the  record 
will  be  as  effective  as  though  it  had  been  acknowledged  before 
an  officer  de  jure}  Any  subsequent  proceeding  by  which  the 
usurpation  of  the  office  might  be  established  would  not  aff'ect 
the  validity  of  his  official  acts  regularly  performed. 

§  137.  Attesting  Witnesses.  —  In  a  majority  of  the  states  of 
the  Union  the  certificate  of  acknowledgment  is  all  the  authen- 
tication required  to  admit  the  instrument  to  record.  It  is  only 
in  the  absence  of  such  certificate  that  the  execution  is  re<piired 
to  be  proved  by  attesting  witnesses,  as  a  substitute  for  the  more 
convenient  method  of  acknowledgment  before  an  officer.  But 
in  some  of  the  states  as  we  have  seen,^  tlie  attestation  of  wit- 
nesses is  required  in  addition  to  the  formal  ackowledgments, 
and  in  some  of  these  instruments  copied  upon  the  records 
without  being  so  attested,  have  been  held  not  to  impart  con- 
structive notice  by  virtue  of  their  registry.^ 

§  138.  AVhen  Two  Required.  —  As  where  the  execution  of  a 
deed  was  required  by  statute  to  be  attested  by  two  subscribing 
witnesses,  and  one  of  the  names  subscribed  thereto  was  that  of 
the  wife  of  the  party  executing  it  as  grantor,  this  defect  was 
held  to  be  of  so  substantial  a  nature  that  an  instrument  so 
witnessed  was  not  a  deed,  and  not  entitled  to  be  recorded; 
consequently  the  record  would  not  operate  as  constructive 
notice.* 

§  139.  Witnessed  by  One  Insuffloient.  —  So  when  a  mortgage 
required  by  statute  to  be  attested  by  two  witnesses,  in  addition 
to  the  acknowledgment,  though  regular  in  every  other  respect, 
was  executed  in  the  presence  of,  and  attested  by,  but  one  wit- 
ness, this  was  held  to  be  a  substantial  defect  in  the  execution 
of  the  instrument,  by  reason  of  which  it  was  not  recordable 

'  ]irown  ?).  Limt,  37  Me.,  433. 
""Ante  g99. 

'Prinze  v.  Duiui,  37  Wis.,  449;  Parret  y.  Shaubhut,  5  Minti.,  323;  Galpin 
c.  Abbott,  fi  Mich.,  17. 
*  Carter  «.  Campion,  8  Coun,,  549. 


68  NOTICE    TO    PURCHASERS. 

and  the  unauthorized  record  thereof  would  nut  affect  subse- 
quent purchasers  or  incumbrancers.^ 

§  140.  Defective  Execution  Held  Immaterial.  —  But  the  antlior- 
ities  are  not  uniform  in  exacting  strict  com])liance  witli  legal 
requirements  in  the  execution  of  the  instrument  as  a  condition 
precedent  to  its  admission  to  the  records.  Where  equitable 
interests  are  recognized  as  the  proper  subjects  of  registration, 
the  record  of  any  instrument,  which  passes  the  equity  would 
be  good  constructive  notice  of  that  interest  and  Mould  be  as 
conclusive  upon  subsequent  purchasers,  as  though  the  legal 
title  had  passed  to  the  grantee.  In  pursuance  of  this  doctrine, 
where  a  seal  was  recognized  as  one  of  the  essentials  of  a  deed 
to  real  estate,  and  acknowledgment  was  the  only  legal  formality 
prescribed  for  the  admission  to  the  public  records,  of  instruments 
whereby  legal  or  equitable  titles  or  interests  in  real  estate  were 
affected,  it  was  held  that  a  deed  of  conveyance  from  which  the 
seal  was  omitted  passed  an  equitable  interest  to  the  grantee, 
and  bemg  duly  acknowledged,  was  properly  recorded,  and  the 
same  effect  was  to  be  given  to  the  record  of  this  unsealed  deed, 
as  it  would  have  been  entitled  to  had  it  been  sealed.  It  was 
constructive  notice  to  all  subsequent  purchasers.^ 

§  141.  Record  Inoperative  Without  Delivery. — A  further  pre- 
requisite to  a  valid  registry  is  that  the  instrument  must  })e 
delivered  before  recorded.  Therefore  the  deed  should  not  be 
deposited  for  record  until  after  delivery.  The  obvious  reason 
of  this  rule  is  that  until  delivery,  the  deed  is  incomplete.  It 
was  not  intended  that  instruments  affecting  the  title  to  real 
estate,  which  were  by  law  required  to  be  recorded,  should 
operate  as  constructive  notice  of  a  change  of  ownership  in  the 
property,  which  they  were  utterly  powerless  to  effect.  A  deed 
without  delivery  is  as  inoperativ^e  as  though  it  had  never  been 
executed,  and  may  be  of  even  less  effect  than  it  would  be  with 
a  defective  execution.^ 

'  White  V.  Denman,  1  Ohio  St.,  110. 

« McClurg  «.  Phillips,   57   Mo.,  314;  Harriugtoiie.  Fortuer,58    Mo.,  4G8; 
Brydon  v.  Campbell,  40  Md.,  331. 
» Parker  v.  Hill,  8  Mote,  447. 


KKGISTKATION    OF    JNSTKL'MKXTS.  60 

§  142.  Delivery  after  Reeordiiig.  —  Wliere  a  deed  was  executed 
and  acknowledged  by  tlie  grantor,  who  of  his  own  motion  filed 
it  for  record,  and  after  it  had  been  duly  copied  upon  the 
records,  delivered  it  to  the  grantee,  the  record  was  held  not  to 
impart  notice  from  the  date  of  filing,  for  the  reason  that  until 
delivered  it  was  not  a  completed  instrument,  as  the  title  to  the 
property  was  still  in  the  grantor.' 

§  143.  Same — Effect  of  Subsecunent  Delivery. — Where,  however, 
the  deed  is  delivered  a^tev  it  has  been  recorded,  it  does  not 
lose  all  the  benefits  of  the  registration,  but  the  record  will 
be  notice  to  all  who  purchase  subsequent  to  the  delivery;  but 
those  who  may  have  purchased  during  the  time  between  the 
registration  and  the  delivery  of  the  deed,  without  notice,  and 
for  value,  will  be  as  effectually  protected  as  though  the  instru- 
ment had  never  been  recorded  at  all.^ 

J5 144.  Must  be  Recorded  by  Proper  Officer.  —  It  would  seem 
scarcely  necessary  to  add  that  in  order  to  render  the  i-ecording 
effectual,  it  should  be  the  act  of  an  officer  duly  authorized  and 
empowered  to  act  in  the  premises.  The  mere  copying  an 
instrument  upon  the  records  by  a  \-olunteer  who  had  not  been 
previously  deputized  or  authoi'ized  to  perform  the  work,  would 
not  amount  to  constructive  notice. 

§145.  Recorded  by  Officer  De  Facto.  —  But  where  an  oflicer  is 
acting  under  a  government  de  facto ^  though  it  be  unlawful 
and  revolutionary,  if  it  be  of  paramount  force  within  the  dis- 
trict where  the  ofiicer  exercises  his  functions,  his  official  acts, 
not  directly  in  aid  of  the  war  power  of  the  unlawful  govern- 
n)ent,  will  be  regarded  as  valid  and  binding. 

>j  140.  Same.  —  So  the  registry  of  a  deed  by  a  clerk  who 
continued  to  exercise  his  official  duties  in  the  State  of  Virginia 
after  the  ])assage  of  the  ordinance  of  secession,  while  the  county 
was  under  control  of  the  military  power,  was  held  valid.'' 


'  Piirkcr  v.  Hill,  «  Mftc,  447;  Life  Ins.  Co.  v.  Rowand,  26  X.  J.  Eq.,  889. 
"ParktT  «.  Hill,  8  M.-tx-.,  447;  Jones  ».  liol.erts,  (>.")  iVIe.,  273, 
«  H  iiniiifr  'K.  Fislicr,  «  W.  Vii.,388;  s.-.-.  also.  T«-.\:is  v.  While,  7  Wall.,  783; 
Thoriiiglon  o.Smilh,  8  Id.,  1 ;  Giimn  ;;.  Ciinniii.u;li:iiii,  20  (Jiatl.,  31 ;    Slicrfy 


70  NOTICE    TO    PUKCHASEKS. 

§  147.  Effect  of  Error  in  Record.  —  The  record,  in  order  to 
fulfill  its  proper  function,  should  be  an  exact  copy  of  the  words 
and  figures  contained  in  the  original,  set  forth  in  their  proper 
order  of  arrangement.  The  greatest  care  is  usually  taken  in 
recording,  to  produce  a  literal  transcript  of  the  instrument  filed 
for  record — even  to  the  perpetuation  of  its  errors  and  omis- 
sions. But  in  prosecuting  his  labors  with  the  evact  nicety 
required  to  avoid  trifling  errors,  the  ofiicer  occasionally  coin- 
niits  errors  of  a  graver  sort,  b}'  which  the  record  is  liable  to 
mislead.  Errors  of  this  kind  have  been  held  to  vitiate  the 
record  and  destroy  its  efiiciency  as  constructive  notice.  ^ 

§  148.  Errors  in  Description.  —  As  where  the  statute  rendered 
the  filing  of  the  instrument  constructive  notice  to  all  pur- 
chasers subsequent  to  the  date  of  such  filing,  regardless  of  tiie 
time  of  copying  the  instrument  upon  the  records,  it  was  held 
that  after  the  record  was  completed,  purchasei's  without  actual 
notice  of  the  contents  of  the  original  had  only  constructive 
notice  of  what  such  record  would  disclose;  and  there  l)eing  an 
error  in  the  description,  by  which  it  appeared  that  the  interest 
conveyed  was  the  undivided  interest,  whereas,  in  the  original 
deed  it  was  the  individual  interest,  it  was  held  that  the 
notice  was  only  of  the  conveyance  of  the  undivided  half,  as 
appeared  by  the  records.""*  So  where  the  recorder  inserted  the 
name  of  the  wrong  person  as  grantor,  the  record  was  treated 
as  notice  of  a  conveyance  by  the  individual  whose  name  was 
erroneously  entered  upon  the  records  as  executing  the  insti-u- 
ment.^ 

§  149.  Effect  of  Filing  and  Subsequent  Error  in  Recording.  — 
Many  of  the  recent  authorities  seem  to  favor  the  view  that 
when  the  instruments  have  been  spread  upon  the  records,  they 
only  give  notice  of  the  contents  of  such  as  are  correctly 
recorded,  although  previous  to  their  being  recorded,  the  filing 

V.  Argenbright,  1  Heiskell,  128:    Harrison  v.  Farrat-rs"   Bk.  of  Va.,  6  W. 
Va.,  1. 

'  Jennings  d.  Wood,  20  O.,  2(51 ;  Terrel  v.  Andrew  Couuly,  44  Mo.,  U09. 

"Miller  d.  Bradford,  12  la.,  14. 

Jennings  v.  Wood,  20  Ohio,  261. 


KKOISTRATION    OF    INSTBUMKNTS.  71 

for  record  is  complete  notice  of  tlie  contents  of  the  original. 
The  purchaser  is  protected  in  placing  complete  reliance  upon 
the  records  as  he  finds  them,  and  is  not  bound  to  take  notice 
of  errors  in  recording  of  which  he  has  never  been  actually 
informed.  Tliis  doctrine  is  fully  maintained  and  ably  set  forth 
in  the  case  of  Terrel  v.  Andrew  County/  by  Judge  Wagnek, 
who,  in  delivering  the  opinion  of  the  court,  says:  "The  obli- 
gation of  giving  the  notice  rests  upon  the  party  holding  the 
title."  If  his  duty  is  imperfectly  performed,  the  consequences 
must  fall  upon  him,  and  not  an  innocent  purchaser.  In  this 
case  the  filing  is  recognized  as  sufficient  to  protect  the  grantee, 
even  where  the  deed  has  not  been  recorded.  In  examining 
titles,  one  first  searches  the  records,  and  then  examines  the  tiles 
in  case  he  finds  nothing  recorded.  But  if  the  record  shows'  a 
conveyance  he  wall  be  guided  by  that,  and  will  not  consult  the 
files  in  order  to  examine  the  original.  It  is  held  that  the  bond 
given  by  the  recorder  for  the  faithful  performance  of  his  duties, 
is  for  the  benefit  of  every  person  injured  by  his  dereliction  of 
duty,  and  not  merely  for  the  benefit  of  subsequent  purchasers. 
In  this  case,  for  the  one  who  deposited  the  deeds  and  paid  for 
having  them  recorded.  According  to  the  views  of  the  learned 
Judge,  it  would  seem  to  be  incumbent  upon  the  grantee  to 
supervise  the  work  of  the  officer,  or  at  least  to  examine  the 
record  when  completed  and  compare  it  with  the  original.  The 
officer  seems  to  act  in  the  capacity  of  agent  of  the  grantee. 

§150. — To  Whom  is  the  Officer  Responsible  for  Errors? — If 
this  were  a  purely  speculative  question,  and  not  one  which 
must  be  determined  by  the  weight  of  authority,  one  might  be 
led  to  inquire  why  it  is  that  for  such  acts  of  non-feasance  or 
misfeasance  these  officers  are  not  always  required  to  answer  to 
the  same  class  of  persons.  As  will  presently  appear,  the  inno- 
cent purchaser  is  in  some  instances  regarded  as  the  one  whose 
rights  are  prejudiced  by  acts  of  negligence,  somewhat  similar 

144  Mo.,  309;  see  also  Lally  «.  Holland,!  Swan  (Tcnn.),  :5!»fi;  Brydon  v. 
Campbell,  40  Md.,  3:51  ;  Barnard  v.  (,'ami)au.  2U  Mich.,  1(J2;  Pringle  v.  Dunn, 
37  Wis  ,  449. 


72  NOriOK    TO    rUROHASEKS. 

to  those  treated  of  in  the  opinion  above  quoted,  and  the  record 
remains  unquestioned.^ 

§151.  Different  Construction  of  the  Statute.  —  Tlie  case  of  Ter- 
rel  V.  Andrew  Count}^  may  be  regarded  as  settling  the  law  upon 
this  question  for  the  state  within  whose  jurisdiction  it  was 
decided  ;  but  the  principles  upon  which  the  decision  is  based 
not  only  may  be  questioned,  but  confronted  by  a  very  respect- 
able array  of  authorities  expressing  opposite  views. 

§152.  The  Notice  Unaffected  by  Errors  in  Recording.  —  In  a 
case  where  the  records  had  be^n  mutilated  and  partially 
destroyed,  Breese  J.,  who  delivered  the  opinion  of  the  court, 
in  commenting  upon  the  doubts  raised  as  to  whether  the  deed 
had  been  properly  recorded  in  the  tirst  instance,  says:  "But 
assuming  that  the  deed  was  not  properly  recorded  in  the  first 
instance,  we  then  say  that  it  is  sufficient  that  the  deed  was  left 
for  record  by  the  grantee."''' 

§  153.  Partial  Omission.  —  So  in  another  case  arising  in  the 
same  state,  it  was  held  that  when  the  deed  is  left  with  the  officer, 
the  grantee  has  done  all  he  is  required  to  do,  and  his  rights 
will  be  protected  though  the  recorder  records  oidy  a  part  of 
the  deed.^ 

§  154.  Entire  Omission.  —  So,  also,  was  it  held  in  the  case  of 
Throckmorton  v  Price,*  that  a  grantor  leaving  his  deed  for 
record  is  not  bound  to  see  that  it  is  recorded.  His  filinor  it  is 
regardedas  equivalent  to  its  registration  so  tar  as  he  is  concerned, 
and  his  rights  will  be  protected  though  it  be  not  i-ecorded  at 
all.  5 

§  155.  Views  of  Early  American  Authorities  1793.  —  That  tliere 
IS  no  novelty  in  this  view  of -the  law,  will  appear  by  consulting 
the  earlier  American  authorities.     In  the  case  of  Franklin  v. 


'  TlirDckiiioitoii  V.  Prince,  38  Tex..    f;()5;    Franklin   v.    Cannon,    1  Root 
(Conn.),  500;  see  dlso  Infra. 
■  Merrick  v.  Wallace,  IJt  111..  48(5. 

'Riggs  0.  Boylan,  4  Biss.,  44~);  Oats  v.  Walls,  38  Ark.,  244. 
*28  Tex.,  «05;  McGregor  w.  Hall,  3  Stewart  &  Porter  (Ala.),  ;^97. 
•Pasch.  Dig,  ,^2107.'^, 


RKGISTRATroy    OF    irfS'l'KUMPJNTS.  73 

Caiinoii/  decided  in  Connecticut  as  early  as  171^3,  it  was  held 
wliere  a  deed  had  remained  for  a  long  time  in  the  office  of  the 
clerk,  without  being  recorded,  through  no  fault  of  the  grantee, 
that  he  should  not  be  prejudiced  by  the  negligence  of  the 
officer,  but  the  deed  should  be  regarded  as  recorded  from  the 
time  it  was  left  with  tlie  officer  for  that  puriDOse."^ 

^156.  Same  ^ — 1794. —  In  another  case  a  mortgage  was  de- 
livered to  the  clerk  for  registry,  on  June  26,  1766,  and  after 
an  indorsement  was  made  thereon  to  the  effect  that  it  was 
then  duly  registered,  it  was  returned  to  the  mortgagee.  Sub- 
sequently in  the  year  1771,  the  land  was  conveyed  hy  the 
mortgagor  to  another,  and  the  deed  was  recorded  the  same 
year.  The  land  was  conveyed  by  deed  to  still  another  purchaser 
without  notice  in  1772,  and  the  deed  recorded  immediately; 
the  purchaser  going  into  possession  in  1773.  The  mortgage 
M'as  not  actually  copied  upon  the  records  until  as  late  as  17!H; 
yet  in  an  action  of  ejectment  by  the  mortgagee,  he  was  held 
to  be  entitled  to  the  possession  as  he  was  not  at  fault  in  the 
matter  of  registration.  The  deposit  of  the  mortgage  with 
the  clerk  was  all  the  duty  which  the  law  imposed  upon  him, 
and  all  subse([uent  purchasers  were  thereby  constructively 
notified  of  the  incumbrance.^ 

§  157.  Destruction  of  the  Records  Does  not  Aflfect  Notice.  —  It  has 
also  been  decided  that  where  the  deed  has  been  once  recorded, 
a  subsequent  burning  or  other  destruction  of  the  2"ecords  will 
not  render  the  same  ineffectual  as  notice  to  subsequent  pur- 
chasers ^  This  latter  position  will  hardh^  be  disputed,  yet  it 
is  supported  by  the  same  reasoning  as  that  urged  in  defense 
of  the  constructive  notice  of  a  deed  properly  deposited  for 
recoi'd,  and  omitted,  or  improperly  transcribed  by  a  negligent 
officei'. 


'  T{o()t,  500. 

'•' llarlmy'T  t).  Gates,  1  Root,  61  [decided  iu  17741;   McDonald   o.  Leacli, 
Kirin-  (Conn.),  72,  |17H(i]. 
'  .ludd  V.  Woodruff,  2  Root,  298. 
*Alvis  V.  Morrison.  (W  111.,  181. 


74  NOTICE    TO    rUHCHASERS. 

§  158.  Effect  of  Kri'«»r  in  Ainoiint  Secured  by  M  >]'t<i:M;;c.  —  I  poll 
tlie  other  hand,  it  was  decided  where  a  clerk,  in  recording  n 
mortgage,  committed  an  error  in  transcribing  the  anion nt 
secnred,  and  rendered  it  t/wee  hundred  instead  of  t/wee  fhon- 
sand  dollars,  that  the  record  was  only  notice  of  tiie  annmnt 
therein  expressed.^ 

§159.  Error  in  Description. — So,  where  in  recording, a  con- 
veyance of  the  east  half  of  a  tract  of  land  was  recorded  by  mis- 
take as  the  west  /talf,  the  error  was  held  to  vitiate  the  record." 

<$  160.  Fraudulent  Concealment  by  Officer.  —  And  even  where 
the  officer  designedly,  and  for  the  purpose  of  concealment  and 
fraud,  copied  a  deed  deposited  with  him  for  record  into  a  book 
which  was  no  longer  used  as  a  record  of  titles,  the  <leed  was 
held  not  to  be  recorded,  and  failed  to  impart  notice  construc- 
ti  vely.^ 

Jjl61.  Immaterial  Errors.  —  But  mere  clerical  errors,  such  as 
a  mistake  of  a  letter  in  tlie  name  of  a  trustee  in  an  assign- 
ment, or  when  the  assignment  is  stated  to  be  to  one  person 
and  the  hahendunils,  to  another,  will  certainly  not  rob  the  rec- 
ord of  its  character  as  constructive  notice.^  So,  where  there  is 
enough  upon  the  record  to  put  a  prudent  man  upon  inquiry, 
it  has  generally  been  held  sufficient  to  amount  to  constructive 
notice,  although  the  property  is  misdescribed  in  the  record.'^ 

§162.  Principle  Governing  Errors  in  the  Record.  —  In  order  to 
arrive  at  a  correct  conclusion,  upon  principle,  in  r«,'gard  to 
the  conflicting  riglits  of  prior  and  subsequent  purchasers,  as 
affected  by  the  registry  laws,  one  of  the  most  pertinent  inqui- 
ries is,  For  whose  henejit  was  the  statute  enacted?  Or,  in  other 
words,  whom  does  it  protect,  and  upon  whom  does  it  impose 
additional  burdens?  A  brief  glance  at  the  common  law  status 
of  the  parties  will  answer  these  questions  at  once.  The  prior 
grantee  was  secure  without  the  aid  of  the  statute,  whether  the 

'  Frost  r>.  Beekman,  1  Johns.  Cli.,  388. 

'^  Sanger  r.  Craigue,  10  Vt.,  555. 

^  Sawyer  v.  Adani^,  8  Vt.,  17  J. 

nVyatt  V.  Barwel',  19  Vesey,  Jr.,  4:^5;  I)ice  f.  Everard,  6  T.  R.,  545. 

"Partridge  e.  Smith,  2  Bish.,  C.  Ct.,  183. 


RKGLSTRATION    OF    INSTRUMENTS.  <0 

subsequent  purchaser  knew  of  tlie  existence  of  his  deed  or  not. 
The  intended  purchaser  had  the  most  imperfect  means  of  aseer- 
tainin"2:  tlie  condition  of  tlie  title.  Tlie  statute  was  interposed  for 
the  purpose  of  furnishing-  liim  with  the  necessary  information, 
and  in  doing  so  it  was  found  necessar3'  to  impose  an  additional 
obligation  on  the  first  grantee.  If,  then,  the  law  is  primarily 
for  the  protection  of  the  subsequent  purchaser,  it  would  seem 
that  any  breach  of  duty  by  the  officer  was  a  violation  of  his 
rights  in  the  premises,  and  the  delinquent  official  should  be 
required  to  answer  to  him.  The  conclusion  seems  to  follow 
inevitably  that  from  the  deposit  of  the  instrument  with  the 
proper  officer  for  record,  it  should  be  regarded  as  constructive 
notice  to  all  persons  who  subsequentl}^  deal  with  the  title,  not- 
withstanding any  errors  by  the  officer  in  recording  the  instru- 
ment, or  even  when  he  neglects  to  record  it  at  all. 

§  163.  Failure  to  Record  in  Proper  Time.  —  So,  where  a  time 
is  fixed  by  law  within  which  an  instrument  is  required  to  be 
recorded  in  order  to  operate  as  notice  to  subsequent  purchasers, 
and  the  officer,  through  press  of  business,  negligence,  or  dis- 
honest motives,  fails  to  record  it  within  such  a  time,  his  failure 
will  not  be  allowed  to  work  prejudice  to  the  interests  of  the 
party  who  is  interested  in  maintaining  the  validity  of  the  rec- 
ord, when  the  instrument  has  been  deposited  with  the  recorder 
within  the  statutory  period.^ 

§164.  The  Index.  —  There  are  other  errors  committed  by  the 
recording  officers,  scarcely  less  misleading  in  their  chai'acter, 
or  disastrous  in  their  operation,  than  mistakes  or  omissions  in 
copying  the  instruments  filed  for  record.  The  index  to  the 
record  is  of  such  importance  that  without  it  the  cost  of 
employing  a  competent  person  to  examine  the  records  would, 
in  some  instances,  equal,  if  not  exceed  the  value  of  the  ])roj)- 
erty  to  be  conveyed.  These  are,  in  some  cases,  held  to  be 
essential  parts  of  the  records,  in  the  al>setu;e  of  which  subse- 
quent })urchasers  would  not  be  charged  with   notice.^     In  this 

'  Harrold  c.  Simons,  J)  iMo.,  :\2Ct. 
»  Speer  v.  Evans,  47  Pcnn.  St ,  141. 


76  NOTICE    TO    PL'FiOHASERS. 

case  it  was  so  held,  thontrh  the  question  was  not  essential,  and 
had  nothing  to  do  with  a  determination  of  the  controversy ;  as 
the  purchaser 'Was  charged  with  actual  notice  of  the  recorded, 
but  non-indexed  mortgage.  The  question  was  also  discussed  in 
Schell  V.  Stein,^  but  no  decisive  conclusion  arrived  at,  for  the 
reason  that  in  that  case  the  deed  was  properly  entered,  as  the 
statute  required,  in  the  index  to  the  volume  in  which  it  was 
recorded,  but  was  omitted  from  the  general  index  kept  by  the 
recording  officer,  for  which,  however,  the  law  made  no  provis- 
ion. In  this  case  the  court  regarded  the  officer  as  resting  under 
an  obligation  to  furnish  the  necessary  information  to  searchers 
of  the  records,  and  if  he  voluntarily  provided  a  general  index, 
upon  the  correctness  of  which  they  were  induced  to  relj,  he 
was  liable  to  such  as  were  misled  by  failure  to  make  entries 
therein  according  to  his  usual  custom. 

§165.  Failure  to  Index  does  not  Affect  Record. — Where,  how- 
ever, the  question  has  come  up  directly  for  decision,  it  has 
been  held,  in  tlie  majority  of  cases,  that  the  failure  to  index  is 
an  act  of  misprison  for  which  the  officer  is  liable  to  the 
searcher  of  the  records  who  is  thereby  misled  to  his  injury.^ 
The  grounds  upon  which  this  is  placed,  in  a  recent  case,^  seem 
very  reasonable.  It  is  claimed  that  the  ease  with  winch  what 
is  on  the  records  may  be  found  is  not  a  matter  which  con- 
cerns the  owner  of  the  deed,  but  rather  the  searcher  of  the 
records.  The  index  is  made  for  the  benefit  of  the  pul)lic  who 
may  desire  to  use  it  for  the  ])ui'])Ose  of  investigating  the  con- 
dition of  titles  to  property,  and  not  for  the  benefit  of  tlie  own- 
ers of  the  pro])erty,  who  know  that  they  have  done  all  that  the 
law  requires  of  them  in  filing  their  evidence  of  title  for  i-ecord. 

§  166.  Error  in  Index  does  not  Affeet  Record.  —  A  case  decided 
under  the  Iowa  statute,  presents  some  striking,  if  not  perplex- 
ing features.^  The  statute  provides  for  indexing  all  instruments 


'  76  Penn.  St.,  398. 
'Curti.s  V.  Lyman,  34  Vt.,  ::?88. 
'Chathiim  v.  Bradford,  50  Ga.,  :^37. 
*  Barney  v.  Little,  15  Iowa,  527. 


KK(;ISTHAT1()N    OF    INSTKUMENTS.  t  i 

liled.  Sncli  index  to  show  the  names  of  grantors  and  grantees, 
the  time  of  liling,  the  date  of  the  instrument,  its  character, 
and  the  book  and  page  where  the  record  may  be  found.  The 
entries  in  the  index,  with  the  exception  of  the  page,  are  com- 
pleted before  the  instrument  is  required  to  be  recoi-ded  in 
fxtenso.  Tlie  views  expressed  by  Judge  Dillon  in  delivering 
the  opinion  of  the  court  in  this  case,  are  not  in  entire  accord 
with  the  authorities  hereinbefore  cited.  But  the  statute  is 
peculiar  in  respect  to  the  feature  of  indexing.  Compliance 
with  is  requirements,  in  this  particular,  renders  the  entries 
made  "  constructive  notice  to  all  the  world,  of  the  rights  of  the 
grantee  conferred  b}'  such  instrument,"  and  the  instrument 
may  be  copied  into  the  records  *'  as  soon  as  practicable,"  after 
which  the  index  entries  are  completed  by  inserting  the  number 
of  the  page  upon  which  the  instrument  is  recorded.  In  this 
instance  the  recording  officer  discharged  his  duties  without 
substantial  error  or  omission,  until  he  came  to  the  final  act 
required  in  order  to  complete  the  performance  of  his  functions 
in  connection  with  this  particular  deed.  He  entered  the  inrong 
page  o^  the  record  opposite  his  entries  in  the  index;  so  that 
instead  of  directing  the  attention  of  the  examiner  of  the  re- 
cords to  the  page  where  the  instrument  briefly  described  in  the 
alphabetical  index,  was  copied  at  length,  he  was  refei-red  to  a 
different  page  where  another  deed  was  recorded,  from  the  same 
grantor,  but  to  a  different  grantee.  This  was  held  sufficient 
to  put  a  purchaser  upon  inquiry,  and  by  the  dissimilarity 
between  the  names  of  parties  as  they  appeared  in  the  index 
and  on  the  page  referred  to,  suggest  an  error  which  would  have 
been  fully  disclosed  by  a  more  careful  search. 

§  167.  Faihire  to  Index  Under  Iowa  Statute.  —  This  would  seem 
to  be  a  stronger  case  in  support  of  the  validity  of  records,  as 
constructive  notice,  regardless  of  the  index,  than  that  of  Chat- 
ham V.  Bradford,  were  it  not  for  the  reasoning  by  which  it  is 
supported.  If  an  index,  misleading  on  account  of  a  palpable 
error,  might  not  vitiate  the  record,  it  could  be  claimed,  with  a 
fair  show  of  reason,  that  a  perfect  record  with  no  index  would 
be  valid.    But  this  court,  earlier  in  the  same  tei-m,  decided  that 


78  NOTICE    TO    PURCHASERS. 

H  tkiliire  to  index  rendered  tiie  record  void  as  to  sul)se(|ueut 
purchasers  without  actual  notice.^  This  too,  under  an  earlier 
statute,  which  had  not  the  same  provisions  as  to  indexing. 
The  portion  prescribing  the  manner  of  indexing  was  not  as  it 
was  in  the  later  statute,  preceded  by  the  statement  that  no  in- 
strument affecting  real  estate  should  be  of  any  validity  against 
subsequent  purchasers,  etc.,  "  unless  recorded  in  the  office  of 
the  recorder  of  deeds,  in  the  county  in  which  the  land  lies,  as 
hereinafter  yrovided.''^  The  earlier  statute  also  contained  a 
provision  that  instruments  required  to  be  recorded  should  ''from 
the  time  of  tiling  the  same  with  the  recorder,  impart  notice  to 
all  persons  of  the  contents  thereof."  The  court,  however,  in 
the  case  last  cited,  held,  as  in  the  case  of  Terrel  v.  Andrew 
County,^  that  the  notice  by  filing  was  only  temporary,  and  ceased 
when  the  instrument  had  been  spread  upon  the  records,  and 
a  failure  to  index  rendered  the  record  worthless.  In  so  decid- 
ing, the  eminent  judge  who  delivered  the  opinion  in  both  the 
Iowa  cases,  followed  the  authorities  in  that  state,^  and  has  in 
turn  been  followed  by  others  to  the  same  effect.* 

§  168,  Index  Sufticieiit  to  Put  upon  Inquiry. —  Where,  however, 
the  requirements  of  the  statute  have  been  complied  with  in 
every  substantia]  particular,  a  mere  omission  by  the  recording 
officer  to  make  any  of  the  entries  in  his  index  which  the  act 
prescribes,  where  such  omission  leaves  enough  to  direct  the 
attention  of  one  who  examines  the  index,  to  the  proper  book 
and  page,  or  is  even  sufficient  to  put  a  cautious  or  prudent  man 
upon  inquiry,  the  records  will  not  be  thereby  rendered  void, 
as  notice  to  purchasers.  As,  where  the  description  was  omitted 
and  instead  thereof  the  recorder  inserted  the  words,  "  see 
records.''  This  was  held  not  to  be  misleading,  and  hence  did 
not  vitiate  the  records.'    So,  too,  where  instead  of  the  descrip- 

'  Barney  v.  McCarty,  l")  I:i..  510. 
''  Ante. 

'Millf^r  V.  Bradford,  Yl  la.,  14;  Xoyes  r.  Harr,  1:1  Td.,  .".TO;  Breed  r.Cou- 
ley,  14  /(/.,  269. 

^Gwinn  v.  Turner,  18  la.,  1:  Whal'cy  /;.  Small,  25  Id..  184. 
^Calvin  v.  B  )wman,  10  la.,  5  29;  White-  v.  II:i.ui)ton,  13  /'/..  25!>. 


REGISTRATION    OF    INSTRUMENTS.  Y9 

tion  were  the  words  '-certain  lots  of  land"  the  court  lield  this 
sutJicieut  to  put  a  purchaser  u|)OU  inquiiy,  and  hence,  to  charge 
him  with  notice  constructively.^ 

§  169.  Index  Held  Part  of  the  Record. — In  a  case  decided  under 
a  statute  clothing  the  index  with  the  character  of  notice  to  sub- 
sequent purchasers,  it  was  held  to  be  a  record,  by  which  they 
were  charged  with  constructive  notice,  even  when  there  was  a 
substantial  error  in  the  record  itsell? 

§  170.  Grantee  Cannot  Control  the  Officer.  —  It  seems  the  more 
reasonable  doctrine  that  the  neglect  of  clerical  duties  by  the 
officer  should  not  be  chargeable  to  the  grantee  or  mortgagee, 
who,  in  de}>ositing  the  instrument  for  record,  does  so  in  obedi- 
ence to  the  mandate  of  the  law.  The  doctrine  of  re>ipondeat 
superior  cannot  apply  as  though  the  officer  were  the  private 
agent  or  servant  of  the  party  whose  deed  is  deposited.  He  is  not 
chosen  by  the  party  depositing  the  instrument  to  perform  the 
duties  of  filing,  recording  and  indexing,  but  is  designated  by 
the  law  as  the  proper  officer,  and  the  grantee  or  mortgagee  is 
comj)elled  to  apply  to  him  and  none  other,  and  having  done  so, 
has  no  control  whatever  over  his  action.^ 

§  171.  M!>rt;2:agee  not  Affected  by  Officer's  Failure. — It  has  there- 
fore been  justly  held,  where  the  law  made  it  incnmbent  upon 
the  county  clerk,  to  number  mortgages  of  chattels  when  depos- 
ited for  record,  that  his  failure  to  perform  this  duty  in  any 
instance  should  not  imi)air  the  rights  of  the  mortgagee,  liow- 
ever  much  subsecjuent  purchasers  might  be  misled  to  their 
injury  by  the  omission.* 

§  172.  Index  no  Part  of  the  Record.  —  So,  also,  where  the 
statute  required  the  clerk  to  make  an  index  of  the  records,  it 
was  held  that  this  duty  was  prescribed  for  the  ]>urpose  of  fur- 
nishinir  facilities  for  those  interested  in  searching  the  records. 
And  tliat  the  index  being  no  part  ot  the  records  themselves,  it 

''Bo  twu'k  V.  Powers,  13  In.,  456. 
'■*  Shovo  V.  Lausen,  22  AVis.,  143. 
'■  I  ii.fr  a. 
♦Dodu-e  0.  J'ottcr,  IS  IJaib.,  1!»:5. 


80  N(»TK'E    TO    PLKCIIASKKS. 

was  not  essential  that  the  instrument  should  be  indexed  in 
order  to  become  constructive  notice  to  subsequent  parties.^ 

§173.  Same.  —  Current  of  Authority.  —  The  fact  that  ques- 
tions of  this  kind  are  decided  by  courts  with  different  and 
independent  jurisdiction,  each  construing  its  own  statutes,  may 
account,  to  some  extent,  for  the  diversity  of  opinion  upon  the 
importance  of  indexing  the  records.  But  the  difference  is  too 
marked  and  decided  to  be  altogether  accounted  for  in  tliis  man- 
ner. It  will  be  noticed  that  in  neighboring  states  having  reg- 
istry laws  with  substantially  the  same  provisions  in  this 
respect,  the  statutes  have  received  opposite  constructions.  But 
the  current  of  authority  seems  to  be  decidedly  against  the 
doctrine  that  the  index  is  an  essential  part  of  the  record." 

§  174.  Misleading  Errors  in  Ori;2:inal.  —  There  are  errors,  mis- 
takes, omissions  and  ambiguities,  such  as  are  calculated  to 
mislead  an  examiner  of  the  records,  for  which  the  recording 
officer  is  in  no  way  responsible.  This  is  when  the  fault  lies  in 
the  original.  In  such  cases,  if  the  discrepancy  is  of  a  substan- 
tial nature  the  record  is  vitiated.  As  where  the  property 
intended  to  be  conveyed  was  the  eant  half  of  a  lot,  and  was 
described  in  the  deed  as  the  %oest  half  the  record  failed  to  give 
notice  of  the  convej'ance  of  the  property  intended.^ 

§  ITo.  Insufficient  Description.  —  Also,  where  a  transfer  of  a 
lease  of  real  estate  was  made  by  a  separate  instrument,  which, 
being  a  transfer  of  an  interest  in  land,  was  entitled  to  be 
recorded,  it  was  held  that  in  order  to  operate  as  constructive 
Tiotice  to  subsequent  purchasers,  it  should  contain  such  a 
description,  not  only  of  the  premises,  but  of  the  term,  that  the 
original  lease  could  be  recognized  as  the  thing  transferred.* 

§  176.  Errors  in  Numbering.  —  The  purchaser  at  an  execution 
sale  of  land  previously  conveyed  by  a  deed  in  which  the  land 
is    so  indefinitely  described,  or  erroneously  numbered  that  it 

^  Curtis  V.  Lyman.  24  Vt.,  838. 

^See  cases  cited.  Supra. 

3  Sanger  v.  Craigue,  10  Vt.,  5.");  Lally  v.  Holland,  1  Swan  (Tenn.),  396. 

*Martindale  v.  Price,  14  Ind.,  115. 


REGISTRATION    OF    IJSSTKUMENTS.  81 

cannot  be  identified,  or  is  likely  to  be  mistaken  for  another 
tract,  is  not  affected  by  the  record  of  such  prior  deed  with 
notice  of  what  was  intended  to  be  thereby  conveyed.^ 

§  1Y7.  Description  of  Chattels.  —  The  record  of  a  mortgage  of 
chattels,  in  order  to  operate  as  notice  to  subsequent  purchasers, 
must  contain  such  a  description  of  the  things  included  in  the 
mortgage  as  to  enable  one  examining  the  records  to  identify 
the  property.  As  where  cows  were  mortgaged  and  left  in  pos- 
session of  the  mortgagor,  their  calves,  brought  forth  after  the 
execution  of  the  mortgage,  would  not  be  included  therein, 
unless  mentioned.^ 

§178.  Description  of  Debt  Due.  —  So,  where  the  instrument 
was  a  mortgage,  and  the  description  of  the  debt  secured  was 
"  a  debt  due  from  the  mortgagor  to  the  mortgagee  by  note 
dated  tenth  of  May,  1834,  on  demand  with  interest" — without 
specifying  the  amount,  it  was  held  not  to  be  notice  to  subse- 
({uent  purchasers,  of  a  valid  security,  for  the  reason  that  the 
spirit  of  the  recording  acts  requires  the  record  to  disclose, 
with  as  much  certainty  as  possible,  the  state  of  the  incum- 
brances upon  the  property.^ 

§  179.  Conditions  Insufliciently  Expressed.  —  So,  also,  where  the 
condition  of  the  mortgage  was  that  the  mortgagor  should  pay 
all  notes  indorsed  by  the  mortgagee  for  the  mortgagor,  and  all 
receipts  held  by  the  mortgagee  against  the  mortgagor,  the 
record  of  such  mortgage  was  held  void  as  against  creditors  of 
the  mortgagor.* 

§180.  SuflSoient  Certainty.  —  On  the  other  hand,  where  the 
mortgage  describes  the  debts  secured  with  such  particularity 
that  there  could  be  no  difficulty  in  determining  by  inquiry 
what  debts  were,  and  what  were  not  embraced  in  the  descrip- 
tion, the  maxim,  "That  is  certain  which  may  be  made  certain," 
will  be  applied.    It  has  accordingly  been  held  not  to  be  requi- 


>  Bank  v.  Animon,  27  Peim.  St.,  172;  Nelson  v.  Wade,  21  la.,  49. 
•Winter  v.  Landphere,  42  la.,  471. 
'IlartD.  Chalkcr,  14  Conn.,  77. 
*Pcttibone  ■£.  Griswold,  4  Conn.,  158. 
6 


82  KOTIOE    TO    PURCHASERS. 

site  that  the  condition  should  be  so  completely  certain  as  to 
preclude  the  necessity  of  extraneous  inquiry.^ 

§  181.  ApproxiiiiHte  Certainty.  — And  where  the  debt  secured 
was  described  in  the  defeasance  clause  as  follows  :  "  If  I  shall 
well  and  truly  pay  to  B,  on  demand,  with  interest,  the  sum  of 
fifteen  hundred  dollars,  which  I  am  indebted  to  liim,  on 
book  and  by  several  notes,  the  exact  date  and  amount  not 
recollected,  but  amounting,  in  the  whole,  together  with  the 
debt  on  book  to  the  sum  of  fifteen  hundred  dollars  or  therea- 
ho.uts,  then  this  deed  shall  be  void;"  and  it  appearing  that  when 
the  mortgage  was  given  the  mortgagor  was  in  failing  circum- 
stances and  had  not  time  to  ascertain  the  precise  amount  to 
be  secured,  which  was,  in  reality,  in  excess  of  fifteen  hundred 
dollars,  the  mortgage  was  held  valid  as  against  other  creditors 
and  subsequent  incumbrancers,  and  the  record  operated  as 
notice  to  them  to  the  extent  of  the  amount  mentioned  therein.^ 

§  182.  Mortgage  Securing  Future  Advances.  — It  has  also  been 
lield  that  the  record  of  a  mortgage  is  not  intended  as  notice 
of  the  amount  due  thereon,  and  is  valid  when  future  advances 
are  secured,  without  specifying  the  amount  with  particu- 
larity.3 

§183.  Description  which  Maybe  Rendered  Certain  by  Inquiry 
Sutficient.  —  In  order  that  the  record  of  a  deed  shall  be  vitiated 
by  errors  or  uncertainty  in  the  description,  or  other  part  of 
the  original,  the  error  must  be  in  a  matter  of  substance,  or  the 
uncertainty  one  which  cannot  be  rendered  certain  by  such 
inquiries  as  the  record  would  naturally  excite.  So,  where 
there  was  a  contract  to  convey,  in  which  the  property  was 
described  as  so  many  acres  of  "  my  land  which  I  hold  in  the 
South  Mountain,    any  v.  here   on   the    turnpike  road    between 

'  Young  V.  Wilson,  27  X.  Y.,  >551 ;  Monell  v.  Smith,  5  Cow.,  441 ;  Ro!  iuson 
p.  Williams,  22  N.  Y.,  ;580;  Stoiighton  i).  Pasco,  5  Conn.,  442;  Merrills  v. 
Swift,  18  Id.,  257;  United  States  v.  Hooe,  3  Cranch,  73;  Kramer  v.  Far- 
mers' and  Mechs.'  Bk.,  \~i  Ohio,  253. 

'  Merrills  v.  Swift,  18  Conn.,  257. 

s  BellB.  Fleming,  12  X.  .T.  Eq.,  13. 


REGISTRATION    OF    INSTRUMENTS.  bo 

Newman's  and  the  bridge  over  tlie  Canadeqningt  Creek,"  it 
was  held  that  this  gave  the  covenantee  a  riglit  of  selection 
within  the  prescribed  limits,  and  the  record  of  the  instrument 
was  constructive  notice  of  that  right.^ 

§184.  Errors  Not  Misleading.  —  So,  also,  where,  in  a  deed, 
the  number  of  the  town  and  range  were  transposed,  so  that 
there  was  no  such  piece  of  land  in  the  county  as  described  in 
the  deed,  it  was  held  that  the  record  of  the  deed  disclosed 
enough  to  put  a  prudent  man  upon  inquiry,  and  as  such  was 
sufficient  notice  to  subsequent  purchasers  of  the  land  actii- 
ally  intended  to  be  conveyed.^ 

§  185.  Immaterial  where  Purchaser  Not  Misled.  —  The  error  in 
the  deed,  in  order  to  vitiate  the  record  thereof,  must  be  one 
calculated  to  mislead  the  purchaser.  Therefore,  if  the  pur- 
chaser had  any  knowledge  of  the  error,  or  from  his  knowledge 
of  the  property  and  its  surroundings,  would  have  been  able  to 
interpret  the  record  and  give  it  the  meaning  it  was  supposed 
and  intended  to  convey,  it  would  be  sufficient  to  charge  him 
with  notice.^  As  where  a  mistake  in  the  record  was  discovered 
by  the  attorney  of  the  subsequent  purchaser,  such  mistake 
being  in  the  description,  "  West"  instead  of  "North;"  the 
fact  that  this  was  easily  recognized  hy  the  attorney  of  pur- 
chaser while  engaged  in  examining  the  records  for  his  principal, 
manifested  such  a  knowledge  of  the  property  and  its  situation 
that  the  mistake  would  not  vitiate  the  record.* 

§  18G.  Instruments  should  he  Filed  for  Record  in  their  True 
Character. — Another  important  requirement  in  regard  to  the 
registry  of  instruments,  in  order  that  they  may  operate  as  con- 
structive notice,  is  that  they  should  be  registered  m  their  true 
characters.  Otherwise  they  may  fail  to  give  notice,  not  only 
of  the  estate  or  interest  they  are  intended  to  affect,  but  of  that 
which  they  on  their  face  purport  to  convey.     As  where  an 

'  Brolliorton  u.  Livingston,  3  W.  &  S.,  334. 

'Partridsjc  v.  Sinitli,  2  Biss.,  183.  Tiiis  is  probably  as  strong  a  case  as 
the  rule  will  support. 

»  Erickson  v.  Hatterty,  79  111.,  209. 
■•Joucs  -y.  Baraford,  31  la.,  217. 


84  NOTICE    TO    PURCHASERS. 

instrument  is  drawn  and  executed  in  the  form  of  an  absolute 
deed,  which  is  intended  only  to  take  effect  as  a  mortgage;  it 
should  be  registered  as  a  mortgage,  and  not  as  an  absolute 
deed.  The  reason  of  this  is  that  the  instrument,  not  being 
an  absolute  conveyance  of  the  property,  its  registry  as  such 
cannot  charge  any  one  with  notice  of  its  contents.  It  being 
in  reality  a  mortgage,  it  should  be  recorded  where  the  searcher 
for  mortgages  would  be  most  likely  to  Und  it — in  the  record 
of  mortgages.-^ 

§  ISY.  Deed  with  Defeasance  is  Mortgage.  —  So,  where  there 
was  a  written  defeasance  to  an  absolute  deed,  and  the  deed  was 
recorded  among  the  absolute  deeds,  but  the  defeasance  wa.-- 
unrecorded,  the  two  instruments  were  treated  as  one,  and  that 
one  a  mortgage,  which  not  being  properly  recorded,  through 
the  negligence  of  the  parties  interested,  was  postponed  to  the 
lien  of  a  subsequent  judgment.- 

§  188.  Defeasance  nuist  be  Recorded  as  Movtgage.  —  So,  also 
where  a  separate  defeasance  was  recorded,  but  in  the  same 
book  with  the  deed  instead  of  in  the  record  of  mortgages,  it 
was  held  not  to  amount  to  constructive  notice  to  a  creditor, 
for  the  reason  tiiat  it  would  not  lie  in  his  way  if  examining 
the  record  for  mortgages.^ 

§  189.  Parol  Defeasance,  Deed  Recorded  as  Mortgage.  —  And 
even  where  there  is  no  written  defeasance  to  the  deed,  but  the 
contract  to  re-convey  rests  entirely  in  parol,  though  upon  the 
face  it  appears  an  absolnte  deed,  or  when  the  mortgage  is  so 
imjDcrfect  in  form  as  not  to  give  adequate  expression  to  the 
intention  of  the  parties,  still  in  either  case  the  intention  with 
which  the  instrument  was  drawn,  being  the  true  guide  to  its 
construction,  will  govern  its  registration.     If  recorded  other- 


'Dey  V.  Dunham,  2  Johns.  Ch.,  182;  .James  i\  Morey,  2  Cowen,  24(5;  Man- 
nfacturers'  Bk.  v.  Bk.  of  Pennsylvania,  7  Watts  &  Serg.,  385. 

"Friedly  v.  Hamilton,  17  Serg.  &  Rawle,  70;  Brown  v.  Dean,  8  Wend., 
208;  Jaques  v.  Weeks,  7  Watts,  261  ;  Edwards  v.  Trumbull,  50  Peun.  St., 509. 

^McLanahan  v.  Reeside.  9  Watts,  508;  Grimstouo  v.  Canor,  3  Paige,  421 ; 
Jackson  v.  Van  Valkenburg,  8  Cow.,  260. 


KEGISTKATION    OF    INSTRUMENTS.  85 

wise  than    as  a  mortgage,  the  record  loses  its  character  as 
constructive  notice  to  purchasers  or  creditors.^ 

§  190,  Sheriff 's  Deed  Recorded  as  Mortgage  Insufficient,  —  So, 
where  a  Sheriff's  deed  was  at  his  instance  recorded  in  the 
inorterao'e  book  instead  of  the  record  of  absolute  deeds,  it  was 
held  that  this  error  rendered  the  record  void,  and  if  the  deed 
were  not  properly  recorded  until  after  attachment  by  a  creditor, 
the  record  could  not  affect  the  seizure.^ 

§  191.  Record  of  Secret  Mortgage. — Tliere  is  perhaps  a  stronger 
reason  for  discrediting  the  record  of  a  secret  mortgage  because 
of  its  being  recorded  in  the  wrong  book,  than  there  would  be 
for  drawing  the  lines  with  the  same  strictness  in  cases  where 
the  fault  lies  entirely  M-itli  the  recording  officer.  In  the  one 
case  the  record  is  misleading,  because  the  original  instrument 
is  designedly  so  ;  while  in  the  other  the  honest  intentions  of 
the  parties  have  been  defeated  b}'-  the  misprision  of  a  public 
officer  over  whose  acts  they  could  have  tio  control. 

§192.  3Iast  be  Filed  in  Proi)er  County. — Another  important 
requisite  to  the  validity  of  the  record  of  an  instrument  is  that 
it  must  be  deposited  for  i-ecord  in  the  county,  town,  parish,  or 
other  place  designated  by  law  for  the  keeping  of  such  records. 
Upon  this  rule  the  courts  of  the  different  states  are  almost,  if 
not  quite,  uniformly  agreed,  however  much  tliej-  may  disagree 
as  to  other  details  of  their  registry  acts.  So,  where  under  the 
provisions  of  a  statute,  requiring  instruments  affecting  the 
title  to  land,  to  be  recorded  in  the  town  where  the  land  was 
situated,  though  the  registry  elsewhere  might  be  sufficient  to 
charge  those  who  had  actually  seen  and  read  the  record,  it 
would  not  suffice  to  give  that  constructive  notice  for  which  the 
registry  system  was  designed.^ 

§  193.  Effect  of  Filing  in  Wrong  County.  —  Also,  where  a  new 
county  had  been  mapped  out  of  another,  and  the  land  was 
situated  in  the  new  county,  but  a  grantee  not  being  advised  of 


'  Shaw  V.  Wilshire,  65  Me.,  485. 
"Colonicr  V.  Morgan,  l.'J  La.  .\nn.,  803. 
'  Pen-in  o.  Reed,  35  Vt.,  2. 


86  NOTICE    TO    PURCHASEKS. 

the  change  which  had  been  legally  prescribed  while  the  nego- 
tiations for  the  purchase  were  pending,  deposited  his  deed  for 
record  in  tlie  old  county  instead  of  the  new,  its  registration 
was  held  to  be  worthless  as  notice  to  those  who  were  uninformed 
of  the  transfer.^ 

§194.  Deposit  of  Chattel  Mortgage  in  Wrong  Town.  —  So  also, 
where  mortgages  of  chattels  were  required  by  statute  to  be 
recorded  in  the  town  where  the  mortgagor  had  his  domicil,  and 
a  mortgage  was  given  by  two  joint  owners  of  certain  articles 
of  personal  property,  wlio  resided  in  different  towns,  which 
mortgage  was  only  recorded  in  the  town  in  which  one  of  such 
mortgagors  was  domiciled,  the  failure  to  record  in  both  towns 
was  held  to  render  the  mortgage  void  as  against  subsequent 
innocent  purchasers.'^ 

§195.  Cliange  of  County  Subsequent  to  Filing  will  not  AfFect 
Registry.  —  But,  wliere  the  deed  is  deposited  for  record  in  the 
office  of  the  recorder  of  the  county  in  which  the  land  is  located 
at  the  time,  and  by  a  subsequent  subdivision  the  land  falls 
within  the  boundaries  of  another  county,  such  change  will  not 
affect  the  validity  of  tlie  registration.^ 

§196.  Order  of  Priority  between  Deeds. — As  between  unregis- 
tered instruments  affecting  the  title  to  real  estate,  the  order  of 
their  priority  will  be  governed  by  the  order  of  their  dates.  As 
between  registered  instruments,  however,  they  will  generally 
take  precedence  in  the  order  in  which  they  are  recorded.^  So 
where  there  has  been  a  sale  of  real  estate  by  an  insolvent  debtor, 
for  the  purpose  of  defrauding  his  creditors,  and  the  fraudulent 
grantee  has  conveyed  the  premises  to  an  innocent  purchaser 
for  value,  as  between  the  creditors  of  the  innocent  debtor,  and 
the  innocent  purchaser  from  the  fraudulent  grantee,  the  law 
will  favor  the  most  vigilant.^ 

I  Aster  V.  Wells,  4  Wheat.,  4(56 ;  Stewart  r.  McSweeny,  14  Wis..  468. 

«Rich  V.  Roberts,  48  Me.,  548. 

'  Milton  V.  Turner,  38  Tex.,  81. 

*  LigUtner  v.  Mooney,  10  Watt.^,  407. 

»Choteau«.  Jones,  11  Ills.,  300. 


BEGISTKATION    OF    INSTRUMENTS.  87 

§197.  Simultiineous  Mortgages.  —  So  also,  where  two  mort- 
gages on  the  same  property  were  simultaneously  given  with 
the  understanding  between  the  mortgagees  and  the  mortgagor 
that  the  two  were  to  take  effect  as  separate  and  equal  incum- 
brances, and  that  between  them  there  was  to  be  no  priority, 
and  subsequently  one  of  the  mortgagees  recorded  and  then 
transferred  his  mortgage  to  a  hona  fide  purchaser  who  took 
without  notice  of  the  other,  and  who,  in  his  turn,  transferred 
the  instrument  to  still  another  innocent  purchaser,  for  value, 
before  the  other  mortgage  was  recorded,  it  was  held  that  the 
last  purchaser  might  take  advantage  of  the  prior  registration 
of  his  mortgage.^ 

§  198.  As  between  Original  Parties,  Priority  Subject  to  Stipula- 
tion.—  In  one  case  where  a  mortgage  and  a  judgment  against 
the  mortgagor  were  entered  of  record  on  the  same  day,  it  was 
lield  that,  jprvma  facie  they  would  be  treated  as  taking  effect 
simultaneousl3^;  but  a  verbal  agreeirient  between  the  parties 
that  the  mortgage  was  to  have  precedence  as  notice  would  be 
binding  upon  them,  though  not  upon  a  hona  fide  assignee  of 
the  judgment.^ 

§  199.  Registration  will  not  Divest  Actrned  Rights.  —  Where  a 
purchaser  with  notice  of  a  prior  unregistered  conveyance  from 
his  grantor,  had  his  deed  recorded  first,  and  then  conveyed  to 
another  who  pui-chased  without  actual  notice  of  the  prior  con- 
veyance, and  for  a  valuable  consideration,  it  was  held  that  if 
the  first  conveyance  was  recorded  before  his  purchase,  he  would 
be  charged  with  notice,  notwithstanding  the  prior  registration 
of  his  grantor's  deed,  and  the  deed  to  him  would  be  void.* 
However,  had  the  first  mentioned  purchaser  taken  his  convey- 
ance in  good  faith,  his  prior  registry  would  have  given  him  a 
perfect  title  which  would  have  passed  to  his  grantee  notwith- 
standing the  subsequent  registration  of  the  prior  deed.* 

'  Greene  «.  Deal,  4  Hun,  703.  But  see  Greene  c.  Warnick,  64  N.  Y.,  220, 
where  Greenes.  Deal  is  reversed  forthe  reason  that  the  assignee  ofa  mortgage 
is  held  to  be  entitled  to  the  protection  of  the  registrj-^  laws  on'y  with  respect 
to  asuliseciucnt  transfer  of  th(;  same  mort gaii:('.  i^-'c  also  Jones  on  Mortg.,  ^  .lOfJ. 

'^  Ilendrickson's  Appeal,  24  Penu.,  ISt.,  3G3. 

'Van  Kcnsselacr  r  (  la  ic.  IT  Wend. -."i.  "  AnU\  ii  1%. 


88  NOTICE   TO    PURCHASERS, 

§  200.  Innocent  Purchaser  not  Charged  with  Notice  of  Priorities 
Except  by  the  Record.  — In  another  case  which  seems  to  conflict 
with  that  of  YanRensselaerr.  Clark,  the  land  had  been  mort- 
gaged, and  before  the  mortgage  was  recorded,  the  mortgagor 
conveyed  it  to  another,  and  for  a  part  of  the  purchase  money, 
took  notes  secured  by  a  mortgage  upon  the  premises,  from  a 
purchaser  wlio  had  actual  notice  of  the  first  mortgage.  This 
conveyance,  and  the  second  mortgage,  were  both  recorded  prior 
to  the  first.  After  the  first  mortgage  was  recorded,  the  notes 
secured  by  the  second  mortgage  were  transferred  by  indorse- 
ment to  several  successive  purchasers  with  notice  of  the  rights 
of  prior  parties,  but  the  last  indorsee  had  no  other  than  con- 
structive notice  from  the  record,  of  the  first  mortgage.  Prior 
to  the  assignment  of  the  notes,  the  second  mortgagor  conveyed 
his  equity  of  i-edemption  to  a  purchaser  with  notice.  The 
holder  -/f  the  notes  was  held  to  be  charged  with  constructive 
)iotice  of  the  first  mortgage,  but  not  with  notice  of  the  fact 
that  the  ])iirchaser  from  the  first  mortgagor,  took  with  notice 
of  the  prior  unregistered  incumbrance,  so  that,  being  an  inno- 
cent holder,  he  was  allowed  to  foreclose  the  mortgage  by  which 
the  notes  were  secured.^ 

§  201.  Order  of  Filing  Governs  Priority.  —  Though  it  be  true 
that  generally  a  prior  deed  will  be  postponed  to  a  subsequent 
one,  taken  without  notice  when  the  latter  is  first  recorded,  yet 
this  is  only  where  the  subsequent  deed  is  first  deposited  for 
record  by  the  purchaser.  For  the  recording  takes  efi'ect  by 
relation  back  to  the  date  of  filing  for  record.  And  where  two 
instruments  afiecting  the  title  to  the  same  land  adversely  to 
each  other,  are  filed  for  record,  and  the  last  filed  is  first  spread 
upon  the  records,  througli  the  negligence  or  corrupt  design  of 
the  officer,  no  advantage  will  tliereby  accrue  to  the  grantee  in 
the  deed  so  favoi-ed.^ 

§  202.  Deed  Recorded  in  Reasoiuihle  Time.  —  Where  a  deed 
was  executed  before  the    i)roperty  was  attaclied,  thougli  the 

'  Day  V.  Clark,  25  V't..  H!»7. 

"Warnock  v.  Wightmun,  1  I'.rcvMtd,  :;:!!»;  Javvis  n.  Aiknis,  2->  Vt..  G;{5. 


RKOISTKATION    OF    INSTKIjM  KNT8.  89 

attaclitneiit  took  place  twenty-tbui'  hours  prior  to  the  registry 
of  the  deed,  it  was  held  tliat  as  the  instrument  was  recorded  in 
a  reasonable  time  it  would  take  precedence  and  render  the 
attachment  void.^    • 

^  '203.  Subsequent  Purchaser  Alone  Affected.  —  The  only  pur- 
chasers who  are  charged  with  notice  by  the  registration  of  an 
instrument  afi'ecting  the  title  to  land,  are  those  who  purchase 
subsequent  to  the  deposit  of  the  instrument  with  the  register- 
ing officer.^  The  frequent  announcement  of  the  doctrine  that 
the  recordino;  of  an  instrument  aifectina^  the  title  to  land,  was 
"  notice  to  all  the  world "  has  at  times  encourao^ed  the  belief 
that  its  operation  might  be  so  extended  as  to  affect  prior  as 
well  as  subsequent  purchasers  or  mortgagees,  and  thus  control 
their  action  with  reference  to  the  ])roperty  in  which  they 
claimed  an  interest.  But  neither  the  letter  nor  the  spirit  of  the 
recording  acts  can  be  supposed  to  have  reference  to  prior  deeds 
or  mortgages  already  recorded.  The  effect  of  recording  a 
conveyance  is  not  intended  to  bo  retrospective.  The  recording 
of  a  mortgage  is  not  constructive  notice  to  a  prior  mortgagee 
whose  mortgage  is  already  recorded.  And  yet  the  courts  of 
equity  have  been  asked,  for  the  purpose  of  granting  peculiar 
relief  to  subsequent  mortgagees,  to  give  such  a  construction  to 
the  statute  as  would  entirely  invert  the  operation  of  its  pro- 
visions. The  propriety  of  this  construction  has  been  claimed 
in  fui'therance  of  the  equitable  doctrine  that  mortgagees,  where 
the  same  mortgage  covers  several  parcels  of  land,  ai-e  required 
to  subject  the  mortgaged  premises  to  the  payment  of  their 
demands  in  the  inverse  order  of  their  alienation.  Or,  in  other 
M'ords,  when  a  mortgagee  with  notice  of  the  equitable  rights  ot 
subse([uent  purchasers  or  incumbrancers,  releases  one  of  several 
parcels  of  land  mortgaged  for  the  same  debt  of  which  the 
mortgagor  still  holds  the  equity  of  redemption,  unencumbered 
by  a  subsequent  mortgage  being  primarily  liable  for  the  debt, 
he  will   not  be   permitted  to  enforce  his  demand  against  other 

»Goo(lsell  V.  Sullivan,  40  Conn.,  83 
'  Infra. 


90  N<ifriCE    TO    PURCHASEliS. 

parcels  included  in  his  mortgage  which  have  been  conveyed  or 
encumbered  subsequent  to  the  first  mortgage,  without  first 
deducting  from  his  debt  the  value  of  the  parcels  released  by 
liim;  for  the  reason  that  the  release  would  impose  an  additional 
burtlien  upon  that  portion  still  held.^  But  the  recognition 
of  this  doctrine,  does  not  carry  with  it  the  admission  of  the 
record  of  the  subsequent  incumbrance,  as  a  substitute  for  tlie 
actual  notice  which  would  be  necessary  to  affect  the  conscience 
of  the  prior  mortgagee  and  render  his  act  in  releasing  the  por- 
tion of  the  mortgaged  premises  primarily  liable,  a  fraud  upon 
subsequent  purchasers  or  mortgagees.  He  is  not  required  to 
search  the  record  for  instruments  recorded  subse(piently  to  his 
own  which  may  affect  the  title. ^ 

§  204.  Record  of  Quit  Claim.  —  The  record  of  an  instrument 
is  constructive  notice  of  wliat  the  record  shows,  and  nothing 
more.  So,  where  a  quit  claim  deed  has  been  filed  for  registra- 
tion, and  is  duly  spread  upon  the  records,  this  amounts  to 
notice  simply  that  the  grantors  interest  in  the  land  therein 
described  was  therebv  conveyed  to  the  grantee,  and  not  that 
the  grantor  had  any  title  thereto.^ 

§  205.  The  Instrunieiit  3Iust  be  in  the  Cliaiii  of  Title.  —  Nor  will 
the  putting  on  record  a  deed  from  one  who  had  no  record  title, 
affect  the  conscience  of  a  subsequent  purchaser  of  the  legal 
title,  nor  cliarge  that  title  with  any  equities  wliich  the  deed 
may  have  raised  between  the  bargainor  and  the  bargainee.  In 
other  words,  the  record  is  only  constructive  notice  to  those 
claiming  under  the  same  grantoi'.^     Except  in  cases  where  the 

'Stuyvesant  r.  Hall.  2  Barb.  Ch..  151;  Taylor  v.  Maris,  5  Rawle,  51; 
(.'heeseborough  «.  Millard,  1  Johns,  Ch.,  409 ;  Guiou  ?:.  Knapp,  6  Paige,  35 ; 
Blair  v.  Ward,  10  N.  .T.  Eq.,  119. 

'  Stuj'vesant  k.  Hon",  1  Sauf.  Ch..  419 ;  Taylor  v.  Maris,  5  Rawle,  51 ; 
Stuy\  esant ».  Hall  2  Barb.  Ch.,  151 ;  Blair  ».  AYard,  ION.  J.,  Eq.,  119; 
George  ij.  Wood,  9  Allen  80 ;  Howard  lus.  Co.  v.  Halsey,  8  N.  Y.,  271 ;  James 
v.  Brown,  11  Mich.,  25:   Bir.iie  v.  Main,  29  Ark.,  591. 

^  Hutchinson  c.  Harftman.  15  Kans.,  183. 

*  Crockett}).  Majjuire,  10  Mo.,  34:  lloberis  v.  Bourne,  23  Me.,  165;  Losey 
c.  Simpson,  11  X.  .T.  (Eq.),  240 ;  Long  v.  Dulhirhide,  24  Cal.,  218;  Rogers 
V.  Burchanl,  34  Tex.,  441. 


KEGISTKATION    OF    INSTRUMENTS.  91 

title  of  such  grantor  is  one  which  has  ripened  to  perfection 
from  adverse  possession.^ 

§  206.  Same  Further  Illustrated.  — The  principle  stated  above 
may  be  farther  illustrated  by  a  case,  where  the  contest  was 
between  an  attaching  creditor  and  a  purchaser,  whose  deed 
was  recorded  prior  to  the  attachment.  But  the  grantor  of  this 
purchaser  had  himself  purchased  from  the  debtor  of  the  attach- 
ing creditor,  and  had  failed  to  file  his  deed  for  record.  As  a 
consequence  of  this  omission,  the  record  disclosed  no  convey- 
ance from  the  debtor,  and  it  was  held  that  the  record  of  the 
deed  to  the  last  purchaser  did  not  amount  to  constructive 
notice  of  the  unrecorded  deed  to  his  grantor.^ 

§  207.  Effect  of  Missing  Link.  —  So,  where  the  deed  from  the 
vendor  is  not  recorded,  a  deed  of  trust,  or  mortgage  given  by 
his  vendee,  for  the  purchase  money,  will  not  be  notice  to  sub- 
sequent purchasers  of  the  unrecorded  deed.  There  is  a  break 
in  the  chain  of  title.  A  necessary  link  is  wanting,  in  order 
to  connect  the  mortgagor  with  the  title.  There  is  nothing  to 
guide  the  purchaser  beyond  the  record  title  of  the  vendoi",  and 
the  discovery  of  the  mortgage  for  the  purchase  money  would 
be  purely  accidental.^ 

jj  208.  Record  Imparts  no  Notice  of  Relations  between  Parties.  — 
The  constructive  notice  by  registration  does  not  necessarily 
imply  knowledge  on  the  part  of  subsequent  purchasers,  of  the 
relations  subsisting  between  the  parties  to  the  recorded  instru- 
ment. So,  where  a  mortgage  was  given  by  A  and  B,  on  sev- 
eral pieces  of  land  owned  by  them  in  severalty,  to  secure  their 

'  Dii,'man  v.  McCollum,  47  Mo.,  372;  McCoy  v.  Trustees,  etc.,  o  S.  &  R, 
254;  Tiltoii?).  Hunter,  24  Me.,  20;  Bl.ike  v.  Graham,  6  O.St.,  5S0;  Leiby  ». 
Wolf,  10  O.,  88;  Hetherington  r.  Clark,  30  Penn.  St.,  .893;  Bates  v.  Norcrass, 
14  Pick.,  224. 

'Roberts?;.  Bourne,  Supra. 

^  Butts  e.  Norcross,  14  Pickerinj^,  224;  Veazie  v.  Parker,  2B  Me.,  170; 
I'icrcc  w.  Taylor,  7/>  ,  24(5;  Fulton  v.  Pitman,  14  (in.,  530;  Do  Yampert  r. 
Brown,  2H  Ark.,  KIG;  Bazcmore  v.  Davis,  55<}a.,  504:  Wliiltiii,<iton  o.  Wri,<,^ht, 
9Ga.,  23:  Crockett /\  Mii.tiiiirc,  10  Mo.,  34:  l{o<j.ers  v.  Biirclianl  34  Tc.v., 
441  ;  Losey  v.  Simpson,  11  N.  .T.,  E(|.,  240 ;  B.U(^^  r.  Norcioss,  14  IMck.,  224; 
(^uirk  '/).  Thomas,  6  Mich.,   'lii. 


92  NOTICE   TO    PURCHASERS. 

joint  note,  which  was  executed  bj  B  as  surety  for  A,  and  sub- 
sequently A  gave  a  second  mortgage  on  his  land,  and  B,  by 
reason  of  his  being  surety  for  A,  claimed  that  he  was  entitled 
to  pay  off  the  first  mortgage,  and  be  subrogated  to  all  the 
rights  of  the  first  mortgagee  for  his  indemnity,  thereby  taking 
precedence  of  the  second  mortgagee;  it  was  held  that,  as  the 
record  imparted  no  constructive  notice  of  his  suretyship,  and 
actual  notice  thereof  was  not  proven,  innocent  purchasers  or 
incumbrancers  could  not  be  affected.^ 

§209.  Recitals  of  3Iaterial  Facts  Held  not  to  be  Notice.  —  It 
has  even  been  held  that  the  record  is  not  always  constructive 
notice  of  all  it  contains  material  to  the  title.  As  where  there 
was  a  recital  in  the  body  of  a  deed,  which  disclosed  the  fact 
that  a  prior  mortgage  had  been  given  on  the  same  premises, 
and  such  mortgage  was  unrecorded,  the  recital  was  not  treated 
as  constructive  notice  to  subsequent  purchasers,  of  the  exist- 
ence of  the  mortofafi-e.^ 

§  210.  Example  of  Broken  Chain  of  Title.  — In  a  recent  case, 
where  there  was  an  outstanding  unrecorded  deed  of  the  prem- 
ises and  a  deed  duly  recorded  from  the  grantee  to  another  per- 
son, and  also  a  deed  from  this  other  person  to  still  another, 
which  last  was  likewise  recorded,  it  was  sought  to  charge  an 
innocent  purchaser,  by  the  record  of  these  two  deeds,  with 
constructive  notice  of  the  prior  unrecorded  deed.  From  the 
report  of  the  case  it  seems  that  before  completing  the  transac- 
tion, the  purchaser  sought  to  be  charged  obtained  an  abstract 
of  the  title,  in  which  both  these  conveyances,  the  one  from  the 
grantee  in  the  unrecorded  deed,  and  that  from  his  grantee,  were 
mentioned.  It  further  appears  that  in  neither  of  these  was 
there  any  recital  of  the  unrecorded  instrument  which  formed 
a  necessary  link  in  the  chain  of  title.  It  was  held  that  the 
conveyance  appearing  of  record  did  not  operate  as  constructive 
notice  of  the  unrecorded  instrument  under  which  they  both 

'Orvis  V.  Newell,  17  C'oun.,  97. 

"Crofat^.  Wood,  3  Hun.,  571.     Thi.-}  may  well  be  doubted. 


REGIgTBATlON    OF    l^SrKUMENTS.  93 

held;  but  in  reaching  this  conchision  the  conrt  intimated  that 
the  case  might  have  been  differently  decided  had  tliere  been  a 
recital  of  the  unrecorded  instrument  in  those  appearing  of 
record.^  It  is  impossible  to  gather  from  the  report  of  the  case 
cited  whether  or  not  the  fact  that  the  purchaser  had  been  fur- 
nished with  an  abstract  of  the  title  was  insisted  upon  as  actual 
notice.  What  seems  to  have  been  in  dispute,  however,  was 
whether  the  record  of  the  deeds  from  parties  who,  for  all  that 
appeared  of  record,  were  strangers  to  the  title,  was  construc- 
tive notice  of  the  unrecorded  deed.  In  cases  where  this  issue 
alone  has  been  raised,  it  has  been  almost  uniformly  decided 
that  even  the  recitals  in  detached  instruments,  however 
explicitly  they  may  refer  to  prior  unrecorded  instruments 
aftecting  the  title,  will  not  charge  subsequent  purchasers  with 
constructive  notice  of  the  facts  therein  recited.^ 

§  211.  Example  of  Contrary  Doctrine.  —  The  views  expressed 
by  the  court  in  a  still  more  recent  case,  seem  to  be  directly  at 
variance  with  the  weight  of  authority  upon  this  question.^ 
The  controversy  lay  between  the  plaintiff,  claiming  by  adverse 
possession,  under  color  of  title,  and  defendant,  a  purchaser  at 
an  execution  sale.  The  plaintiff  held  a  deed,  duly  acknowl- 
edged and  recorded,  from  a  purchaser  at  a  prior  execution 
sale.  In  attempting  to  execute  the  deed  to  the  first  purchaser 
the  sheriff  omitted  to  affix  the  seal  or  scroll,  which  was  imper- 
atively required  to  give  validity  to  the  deed.  This  omission 
the  court  declared  rendered  the  deed  a  nullity.*  And  being 
an  attempted  execution  of  a  statutory  power  in  derogation  of 
a  common  law  right,  equity  would  not  aid  its  imperfect  exe- 
cution.^ It  was  not  the  conveyance  of  an  equitable  interest, 
as  it  would  have  been  had  the  deed  been  a  voluntary  one,  and 

'  Chicago  V.  Witt,  75  111.,  211.    See  also  Doolittle  ».  Cook,  Id.,  354. 

» Losey  v.  Simpson,  11  jST.  J.  Eq.,  246 ;  Keller  v.  Nntz,  5  S.  &  R,  246 ;  Maul 
r.  Rider,  59  Penn.  St.,  167;  Long?;.  Dollarhide,  24  Cal.,  218;  Finnoij.  Sayre, 
3  Ala.,  458;  Tilton  v.  Hunter,  24  Me.,  29;  Ely  v.  Wilcox,  20  Wis.,  530. 

^  Hamilton  v.  Boggess,  63  Mo.,  233. 

*  Aliens.  Mos8,  27Mo.,  354. 

*Moieau  V.  Detcbemeady,  lb  Mo.,  522;  Morcau  v.  Brauham,  27   Mo.,  351 


94  NOTICli    TO    PUKCIIASEKS. 

the  seal  omitted  by  mistake.^  This  void  deed,  however,  was 
copied  upon  the  records  before  tlie  purcliase  by  the  defendant, 
as  was  also  the  deed  from  plaintiff's  grantor.  It  is  not  clear 
from  the  report  of  the  case  whether  the  defendant,  prior  to 
his  purchase,  had  ever  seen  the  record  copy  of  the  sheriff's 
deed;  but  the  court  held  that,  as  the  deed  to  plaintiff  recited 
the  former  judgment,  execution  and  sale,  described  the  land 
correctly,  and  stated  that  the  first  sheriff's  deed  was  executed, 
it  was  sufficient  to  put  defendant  upon  inquiry,  which  would 
have  resulted  in  a  knowledge  of  ])laintiff's  claim,  and  was 
consequently  constructive  notice  to  him. 

§212.  The  Above  Criticised.  —  The  views  expressed  by  tlie 
court  in  this  case  seem  irreconcilable  with  those  previously 
expressed  by  the  same  and  other  courts,  upon  any  other  hypoth- 
esis than  that  defendant  had  actual  notice  of  the  record.  The 
case  might  have  been  decided  by  leaving  entirely  out  of  con- 
sideration the  question  of  constructive  notice  by  registration, 
and  resting  upon  plaintiff's  adverse  possession,  which  seems, 
Irom  the  instruction  reported,  to  have  been  the  view  taken  by 
the  court  below.  If  it  is  true,  as  we  have  seen,  that  the  rec- 
ord is  only  constructive  notice  to  those  claiming  to  purchase 
under  the  same  grantor,^  the  record  of  the  plaintiff's  deed 
could  not  have  been  constructiv'e  notice  to  one  purchasing  at 
the  last  execution  sale,  because  it  was  from  one  who,  so  far  as 
the  record  disclosed,  was  a  stranger  to  the  title.  ISTeither  its 
recitals,  nor  the  unauthorized  record  of  the  void  sheriff's  deed, 
nor  both  these  together,  could  connect  the  plaintiff's  deed  with 
the  title  of  the  judgment  debtor  under  whom  the  defendant 
claimed.  The  deed  from  the  purchaser  at  the  first  execution 
sale  was  properly  recorded,  it  is  true;  but  between  it  and  the 
titleof  the  judgment  debtor  there  was  a  blank.  In  order  to  make 
the  record  of  its  recitals  constructive  notice,  the  same  opera- 
tion  must  be  sfiven   to  the  record  of  the  void  deed  as  to  a 


'  McCluri^f  «.  Pliilli])s,  ru  Mo.,  314. 
'  Ante  ^  205  et  seq.     Infra,  ^  213. 


KKUISTKATION    OF    INSTKUMENTS.  95 

valid  one,  or  else  there  is  wotliing  to  lead  the  searcher  of  the 
records  to  a  knowledge  of  tlie  fact  by  which  he  is  to  be  bound. 

§213.  Shei-iif's  Deed  from  Apparent  Stranger. — The  recoi'd  of 
a  deed  from  a  sheriff,  pursuant  to  an  execution  sale  will  not  be 
notice  to  a  subsequent  purchaser,  when  the  title  acquired  by 
such  subsequent  purchase  is  derived  from  a  different  source, 
and  there  is  nothing  appearing  of  record  connecting  the  exe- 
cution debtor  with  the  title.  As,  where  certain  land  was  paid 
for  with  the  money  of  a  judgment  debtor,  and  at  his  request  con- 
veyed to  another,  in  trust  for  his  wife,  for  the  purpose  of 
defrauding  his  creditors;  and  the  land  was  sold  on  execution 
against  the  husband,  and  subsequently  purchased  from  the 
trustee  and  tlie  wife,  by  one  having  no  actual  notice  of  the 
equity  of  the  husband  or  of  the  sheriff's  sale,  the  record  of  the 
deed  from  the  sheriff  would  not  charge  such  subsequent  pur- 
chaser with  constructive  notice  of  anything  by  wliich  liis  title 
might  be  affected.^ 

§  214.  Record  of  Conveyance  Anterior  to  Grantor's  Title.  —  The 
])urchaser  is  not  charged  with  notice  from  the  record  of  con- 
veyances from  his  grantor,  prior  to  such  grantor's  acquisition 
of  title."^  In  such  case  the  subsequent  purchaser  would  not  be 
estopped,  by  the  record  of  a  mortgage  from  his  grantor,  prior 
to  the  date  of  his  grantor's  deed.  To  hold  otherwise,  would 
be  to  impose  upon  the  purchaser  the  duty  of  examining  the 
records  indefinitely.^ 

§215.  llhistration  of  Same.  —  So,  in  a  case  where  a  tract  of 
land  was  conveyed  by  deed  to  A,  with  the  exception  of  a  cer- 
tain lot  included  in  the  general  boundaries,  and  the  deed  was 
duly  recorded,  after  which  A  moi'tgaged  the  entire  tract  to  B, 
tliis  mortgage  was  also  placed  upon  record.  Subsequently  A 
purchased  the  lot.  C  held  a  judgment  against  A.  The 
entire  tract  was  sold  to  satisfy  the  mort<ra<re  claim,  and  the  lot 
was  sold  to  satisfy  the  judgment.     In  a  contest  between  the 

'  Crockett  v.  ^la^uire,  10  Mo.,  ;!4. 

"Loau  &  Trust  Co.  o.  Malthv,  o  Pd\:j;v,  ;ifil;  Faircloth  v.  Jonlon,  18  Ga., 
350. 

'/6;  Duchess  ot  Kitlg^,loll'.s  Casi;,2  Siuitli's  Lead.  Case.  (7th  Am.  Ed.),  705. 


96  NorlCE    TO    PUBCHASEKi?. 

purchaser  at  the  mortgage  sale  and  the  purchaser  at  the  exe- 
cution sale,  it  was  held  that  the  latter  by  his  purchase  acquired 
the  better  title  to  the  lot.  He  was  only  constructively  notified 
by  the  record,  of  incumbrances  placed  upon  the  lot  by  the 
judgment  debtor,  subsequent  to  his  acquisition  of  title.^ 

§  216.  Contrary  Doctrine  Criticised.  —  The  doctrine  of  estoppel 
by  deed  was  applied  to  a  case  similar  to  the  foregoing,  and  it 
was  held  by  a  divided  Commission,  that  the  record  of  a  mort- 
gage, pi'ior  to  the  purchase  of  the  premises  by  the  mortgagor, 
was  binding  upon  privies  in  blood,  privies  in  estate,  and  privies 
in  law,  after  the  title  w^as  acquired  by  the  mortgagor.^  But 
upon  both  principle  and  authority,  it  seems  more  consonant 
with  the  spirit  of  the  recording  acts,  to  absolve  purchasers 
from  the  duty  of  examining  the  records  for  conveyances  from 
their  grantors,  prior  to  the  time  when  they  had  a  title  to  convey, 

§  217.  Purchaser  from  Heir  without  Notice  of  Ancestor's  Unre- 
corded Deed.  —  Where  the  grantor  of  real  estate  dies,  and  the 
deed  is  not  recorded,  it  has  been  held  that  a  subsequent  pur- 
chaser from  the  heir  for  a  valuable  consideration,  and  without 
notice  of  the  unrecorded  deed,  would  be  protected  to  the  same 
extent  as  though  he  had  purchased  from  the  ancestor  under 
similar  circumstances.' 

§  218.  Reasons  Assigned  for  the  Rule.  —  The  following  are  the 
principal  reasons  assigned  for  thus  holding:  The  heir  stands 
in  the  shoes  of  his  ancestor.  The  title  to  the  real  estate  descends 
to  him  immediately  on  the  death  of  the  ancestor.  When  the 
yjurchaser  ascertains  who  is  the  sole  heir,  he  would  ordinarily 

1  Calder  v.  Chapman,  53  Penn.  St.,  359. 

"  Tefi't  0.  Muuson,  57  N.  Y.,  97,  citiug  upon  the  general  doctrine  of 
estoppel  by  deed  against  mortgagor,  Wark  v.  Willard,  13  K  H.,  389;  Kim- 
ball w.  BlaisdeJl,  5  Id.,  533;  Lowe  «.  Skinner,  3  Pick.,  53;  Bank  of  Utica 
V.  Mersereau,  3  Barb.  Ch.,  528;  Jackson  v.  Bull,  1  Johns.  Cas.,  81;  White  o. 
Patten,  24  Pick.,  324;  Pike  v.  Galvin,  29  Me.,  183. 

'McCuUoch  «.  Eiidaly,  3  Yerg.,  316;  Powers  o.  McFerran,  2  Serg.  & 
Kawle,  44;  Kenedy  «.  Xorthup,  15  Ills.,  148;  Rupert  o.  3Iark.,  /6.,  540; 
Youngblood  v.  Vastine,  4G  Mo.,  239.  Chadwic-k  o.  Tamer,  1  Ch.  Ap.  Cas., 
310. 


KKGISTKATION    OK    INSTKL  MKNTS.  97 

be  willing-  to  treat  with  liiiii,  iiiiich  ai>  lie  would  have  treated 
M'ith  the  ancestor  in  his  lifetime.  It  is  true  that  the  heir 
could  not  hold  the  property  as  against  his  ancestor's  grantee 
whose  deed  was  unregistered.  In  this  respect  he  is  in  neither 
a  better  nor  a  worse  condition  than  his  ancestor  while  living. 
If  the  real  estate  of  wdiich  one  dies  apparently  seized,  is  to 
remain  foi'ever  subject  to  unrecorded  instruments  affecting  the 
title,  the  benefit  to  be  derived  from  the  registry  laws  is  utterly 
lost  as  soon  as  the  title  is  cast  by  descent.  If  one  hold  a  deed 
to  land  which  is  unregistered  at  the  death  of  his  grantor,  un- 
less subsequent  purchasers  from  the  heir  are  protected,  the 
same  as  subsequent  purchasers  from  the  ancestor,  it  need 
never  be  registered,  in  order  to  protect  the  grantee's  title.  It 
is  believed  that  it  was  never  intended  by  any  of  the  recording 
acts,  that  the  death  of  a  grantor  should  be  allowed  to  create 
a  break  in  the  chain  of  title,  as  it  appeared  of  record,  and 
protect  the  grantee  whose  deed  was  unregistered  against  sub- 
sequent purchasers  without  notice.  The  only  question  is, 
whether  a  contrary  intention  is  sufHciently  expressed  in  the 
statute. 

§  219.  Reason  Assigned  for  Contrary  Doctrine.  —  It  has  been 
held,  that  the  grantee  of  the  heir  will  not  be  protected  in  his 
title,  against  the  claim  <jf  the  ancestor's  grantee  or  mortgagee 
whose  deed  or  mortgage  is  unrecorded,  because  the  language 
of  the  statute  does  not  warrant  such  an  interpretation.^  Though 
it  is  admitted  that  a  purchaser  at  administrator's  sale,  who 
has  his  deed  first  recorded,  will  be  protected  against  claims 
under  prior  unregistered  instruments,  it  is  said  the  heir  has 
nothing  to  convey.^ 

§  220.  Tlie  Rule  Sustained  on  Primjple.  —  The  language  of  the 
statute  usually  is  in  substance  that  no  instrument  affecting 
the  title  to  real  estate  shall  be  effectual  as  against  any  persons 

'  Webb  t).  Wilcher,  33  Ga,  5(55;  ir i  11  »i.  Meeker,  24  Conn.,  211;  Ralls  «. 
Graham,  4  M on.,  120;  Ilaneock  v.  Beverly,  6  B.  Monr.,  531;  ITarlan  v- 
Heaton,  18  /r7.,  312. 

'TiKikcr  V.  Harris,  13  Ga.,  I;  Caidwell  «.  Head,  17  Mo.,  561 ;  McOamant 
V.  PaUerBou,  39  Id.,  100;  Gibson  o.  Choteau,  76.,  53(5. 

7 


98  NOTICE  TO  rriiUHASi<:uy. 

except  grantors,  and  their  heiry,  unless  recorded  in  tlie  manner 
prescribed.  It  is  argued  in  tliose  cases  where  protection  is 
denied  to  innocent  purchasers  from  heirs,  that  the  title  passes 
by  the  execution  and  delivery  of  the  deed  and  not  by  its  regis- 
tration; therefore,  the  ancestor  having  divested  himself  of  all 
title  to  the  premises  during  his  lifetime,  at  his  death  nothing 
descended  to  the  heir  which  he  could  convey.  By  the  same 
rule  no  title  remained  in  the  ancestor  which  he  could  convey; 
yet  if  he  attempted  it,  the  subsequent  innocent  purchaser  by 
the  exercise  of  pi'oper  diligence  in  filing  liis  deed  for  record, 
could  secure  the  title. 

>j  221.  Kentucky  Authorities.  —  In  the  case  of  Harlan  v. 
Seaton,^  the  court  does  not  attempt  a  vigorous  defense  upon 
principle,  of  the  position  assumed,  but  virtually  yields  to  the 
doctrine  of  stare  deems.  Early  decisions  of  the  same  question 
by  the  same  court  are  followed  for  the  declared  reason  that  they 
have  established  a  rule  of  propertj'  in  that  state,  and  it  is 
deemed  better  that  the  law  should  remain  permanent,  even 
though  originally  settled  upon  doubtful  principles. 

§  222.  Weight  of  Authority  and  Governing  PrmcijUe.  —  x\s  be- 
tween these  conflicting  views,  the  weight  of  authority  seems 
to  be  in  favor  of  extending  the  same  protection  to  bona  fide 
purchasers  from  the  heirs  of  a  deceased  grantor,  where  the 
prior  deed  is  unregistered,  as  is  afforded  to  subsequent  pur- 
chasers from  the  grantor  himself  This  view  seems  also  to  be 
supported  by  the  better  reason.  Following  the  record  as  a 
guide,  the  title  seems  to  be  in  the  heir,  at  the  moment  of  the 
ancestor's  death.  It  is  true,  that  as  against  his  ancestor's 
grantee,  he  has  no  title  at  all;  but  the  same  could  be  said  with 
equal  truth  of  the  grantor  himself  where  the  subsequent  deed 
is  from  him.  It  is  probable,  however,  that  the  courts  of  each 
state  where  tlie  question  has  been  once  decided  will  generally 
adliere  to  its  own  construction  of  the  statute,  as  best  calculated 
to  insure  permanency  in  the  laws  governing  propert}' — though 

'  Supra. 


KKGISTKATION    OK    INSTKUMENTS.  1)9 

the  case  of  Youngblood  v.  Yastiiie/  being  the  latest  decision 
of  the  court  where  it  was  decided,  flatly  overrules  the  earlier 
cases  cited  ^  in  which  a  contrary  view  is  expressed  by  the  same 
court.  ••'!',      ■•."•, 

§  223.  Record  of  Conveyances  between  Sti'ang'ei-s  does  not  jiftett 
Purchasers.  —  The  record  of  a  conveyance 'from  one  stranger  to 
the  title,  to  another,  does  not  affect  a' subsequent  purchaser'who 
claims  under  a  different  grantor'.^"  A  fair  illustration 'of  this 
doctrine  is  found  in  the  case  of  Blake  v.  Grahanv.'^  In  that 
case  there  had  been  an  unautliomed  deed  executed  by  an  executor 
in  Pennsylvania,  of  lands  in  Qhip,  which  deed  was  recorded  in 
Ohio;  but  it  was  held  to  be  of  no  avail  as  notice  to  purchasei-s 
from  the  heirs  of  the  testator.^ 

§  224.  Effect  of  Record  of  Instruments  Affecting  Chattels,  follows 
Propert5\ — Ante-nuptial  contracts  of  such  a  nature  as  to  be 
binding  upon  the  parties,  affecting  the  title  to  chattels,  when 
properly  acknowledged  and  recorded  in  the  state  where  the 
property  is  situated  at  the  time,  have  been  held  to  follow  the 
chattels  when  removed  to  another  state,  and  operate  as  con- 
structi  ve  notice  in  the  new  locality.^  So  where  personal  property 
is  mortgaged  in  one  state  according  to  the  laws  thereof,  and 
duly  recorded,  the  rights  of  the  mortgagee  are  preserved  after 
the  removal  of  the  property  to  another  state.''' 

§  225.  Time  given  for  the  Registration  of  Deeds.  —  Where  the 
statute  prescribes  a  time  within  which  the  deed  to  be  operative 
as  notice  to  subsequent  purchasers,  shall  be  filed  for  record,  it 
is  given  a  retrospective  effect  from  the  date  of  filing  (if  within 
the  prescribed  time)  back  to  the  date  of  the  deed,  and  is  held 

'  Supra- 

'Caldwell  v.  Head,  McCamant  •«.  Patterson,  supra. 

8 McCoy  V.  Trustees&C.,5S&  K.,  354;  Tilton  «.  Hunter,  24  Me.,  29; 
Leiby  v.  Wolf,  10  O.,  83;  Hetheringtoii  o.  Clark,  30  Pean.  St.,  393;  Bates  v. 
Norcross,  14  Pick.,  224. 

■»(;  Ohio  St.,  580. 

M.eihy  v.  Wolf,  10  Ohio,  83;  HcilHTington  v.  Clark,  30  Pa.  St..  393:  Bates 
«,  Norcro.ss,  14  IMck.,  224. 

«D>'Lau(;  V.  Moore,  14  How.,  253;  Hicks  «.  Skinner,  71  N.  C,  539. 

''Hall  «.  Pillow,  31  Ark.,  32;  Feurt  v.  RowoU,  G2  Mo.,  524. 


100  NOTICK    TO    ITRCHASP^BrS. 

to  take  precedence  of  instrninents  of  subsecp.ent  date,  even 
thoutrh  the  latter  be  first  filed  i'or  record.  The  same  advan- 
ta^e,  however,  is  not  always  accorded  to  niort<j-ages  and  deeds 
of  trust,. as*  these -ai-e  held  to  be  constructive  notice  onlj  from 
the  time  they  ^re,  }<^dfi;ed  with  the  proper  oftieer  for  registra- 
tieiji) 

''§i^2'6^:Must  be  Purchasei'Te')*' Value.  —  It  is  not  every  one  who 
may  'Be  ,te'ehotcally  styled  a  s'absequent  purchaser,  that  will  1)e 
allowed  to" t'ake  advantage  of  the  fact  that  a  prior  deed  to  the 
same  premises  *is  unregistered.  -  [t'is  not  sufdcient  that  he  is  a 
purchaser  without  notice.  He  -nust  also  be  a  purchaser  wht> 
has  parted  with  vain e.^      '•-'         •" 

§227.  Assignee  for  Benefit  of  Creditor.  —  In  thus  restricting 
the  operation  of  the  statute,  it  has  been  held  that  an  assignee 
for  the  benefit  of  creditors  is  not  a  purchaser  for  value,  and 
therefore  such  an  assignment  would  be  postponed  to  a  prior 
unrecorded  mortgage.^ 

§  228.  Creditor  Purchasing  at  Execntion  Sale.  —  And  so,  where 
at  an  execution  sale,  the  creditor  was  the  purchaser,  and  the 
amount  for  which  the  purchase  was  made  was  credited  on  his 
judgment,  it  was  held  that  he  was  not  a  purchaser  for  a  valu- 
able consideration,  and  was  not  entitled  to  the  protection  of  the 
registry  laws.* 

§  229.  Purchasers  at  Execntion  Sale  Notified  by  Registry  Prior  to 
Sale.  —  But  whoever  is  the  purchaser  at  execution  sale,  whether 
he  be  a  creditor  or  not,  is  charged  with  constructive  notice 
of  all  instruments  affecting  the  title,  executed  and  delivered 
by  the  debtor  prior  to  the  judgment,  and  subsequently  recorded 
provided  such  instruments  are  recorded  prior  to  the  sale.^ 

1  Claiborne  v.  Holmes,  51  Miss..  146;  Stansell  v.  Roberts,  18  O.,  148;  May- 
ham  V.  Coombs,  14  Id.,  428. 

*  Aubucbon  «.  Bender,  44  Mo.,  .560;  Setter  ».  Alvey.  15  Ivans.,  157;  Mar- 
tin V.  Sale,  1  Bailej-'s  Eq.,  1. 

'  Mellon's  Appeal,  32  Penn.  St.,  121;  Brittou's  Appeal,  45  Peuu.  St..  172; 

*  Ayers  r.  Duprey,  27  Tex.,  593.  In  j^eneral  a  purchaser  at  an  exeeutiou 
Bale  is  aftected  with  notice  of  all  the  infirmities  in  the  title  of  the  jvidgnieiu 
debtor.   Richardson  v.  Wicker,  74  N.  C,  278. 

'Thomas  v.  Kennedy,  24  la.,  397;  Jackson  p.  Post,  15  AVcnd.,  588. 


RKOISTKATION    OF    INSTRUMENTS.  101 

§  230.  Interest  of  Mort^^agee  not  Affected  by  Bidding  at  Execution 
Sale.  —  So  it  has  been  held  that  wliere  a  mortt^a^ee  whose  mort- 
gage had  been  registered  prior  to  the  execution  sale,  but  sub- 
sequently to  the  docketing  of  the  judgment,  attended  and  bid 
at  tlie  sale,  his  interest  was  not  affected  by  such  silence  or 
apparent  acquiescence,  though  had  the  mortgage  remained  unre- 
corded until  after  the  sale,  the  purchaser,  if  without  notice, 
■would  have  taken  the  property  freed  from  the  incumbrance.^ 

§  231.  Actual  Notice  of  Unregistered  Deed.  — Actual  notice  of 
an  unregistered  deed  will  be  as  effectual  as  the  formal  regis- 
tration of  the  instrument.-  But  this  actual  notice  must  be 
brought  home  to  the  party  to  be  affected  by  it.  The  fact  that 
one  of  two  partners,  judgment  creditors,  had  seen  a  deed  from 
the  debtor,  who  had  been  allowed  to  remain  in  possession  of 
the  premises  for  two  years,  and  the  deed  had  remained  unre- 
corded for  that  time,  was  not  deemed  such  notice,  or  evidence 
of  notice,  as  would  entitle  the  grantee  in  the  prior  unregistered 
deed  to  relief.^ 

§  232.  Purchasers  Protected  by  Good  Faith  of  Execution  Cred- 
itor. —  However,  in  the  case  of  Low  v.  Blinco,*  it  is  laid  down 
as  a  rule,  deduced  from  the  authorities  cited  below,  that  a  pur- 
chaser at  an  execution  sale  with  notice  of  an  outstanding  unreg- 
istered title,  is  protected,  provided  the  creditor  acts  in  good 
taith  without  notice.  The  creditor  having  the  right  to  direct 
the  sale,  the  purchaser  takes  all  the  title  the  shei-iff  can  be 
required  to  sell.* 

<^  233.  Equitable  Interference  in  Favor  of  Holder  of  Unrecorded 
Title.  —  Courts  of  equity  do  not  always  regard  purchasers  at 
execution  sales,  as  purchasers  for  value.     And  have  refused  to 

'  .Jackson  v  Dubois,  4  .Johns.,  216;  Knouff  t;.  Thompson,  lOPenn.  St.,  357 

'  Seo  Ante  Ch.  I,  Part  I.  Bowman  v.  Lee,  48  Mo.,  335 ;  The  "  .lohn  T 
Moore,"  4  Am.  Law  T.,  40(5. 

^Farnsworth  v.  (.'hi Ids,  4  Mass.,  (537;  see  Ingram  ».  Philiipps,  3  Strobart 
565. 

MO  Bush.  (Ivy.),  331. 

'Morton  v.  Robarils,  4  Dana  (ivy.).  258;  Hally  v.  Oldham,  5  B.  Mour.. 
233;  Righter  n.  Forrester,  1  Bush., 278. 


102  NOTK^K    TO    PURCHASERS. 

allow  a  jndi^ment  creditor,  to  snl)jept  land  of  his  debtor  to  bis 
judgment  in  equity  after  sncli  land  bad  been  sold  to  anotber, 
tbongli  not  yet  conveyed,  even  wliei'e  tbe  creditor  bad  no  notice 
of  sucb  sale,  eitber  actual  or  constructive.^ 

§  234.  Cieditor's  Interest  Held  to  Attach  from  Date  of  Levy.  — 
Under  a  statute  making  tbe  record  of  written  instruments 
notice  to  subsequent  purcbasers  and  creditors  from  tbe  date  of 
filing  for  record,  it  was  held  that  in  case  of  levy,  subsequent  to 
tbe  date  of  tbe  deed,  but  before  tbe  same  was  filed  for  record, 
a  purcliaser  at  tbe  sale  under  sucb  le\T  would  be  protected  in 
bis  purchase,  against  tbe  grantee,  whose  deed  was  not  recorded 
until  after  tbe  ]evj,  provided  the  creditor  had  no  notice  of  the 
deed  at  the  time  be  directed  tlie  levy.'^ 

§235.  Unregistered  Deeds  Good  agaiiLst  Creditoi-s  with  Notice.  — 
Unregistered  deeds  are  good  as  against  creditors  with  sufficient 
notice  to  put  them  upon  inquiry.  And  possession  by  the 
grantee  has  been  held  sufficient  notice  to  creditors,  as  well  as 
subsequent  purcbasers  and  mortgagees.^ 

§  236.  Notice  of  Deed  mnst  be  Snbsequent  to  its  Execution.  — 
The  notice  to  creditors  should  be  subsequent  to  tbe  execution 
of  the  instrument.  So,  where  one  or  two  creditors  of  an  insol- 
vent debtor,  anticipating  the  execution  of  a  deed  to  the  other 
creditors,  by  way  of  a  preference,  and  in  fact  having  positive 
knowledge  that  sucb  deed  was  in  course  of  preparation,  sued 
out  a  writ  of  attachment  before  the  deed  was  delivered,  and 
bad  the  same  levied  upon  the  debtor's  land  before  the  deed  had 
been  deposited  for  record,  but  not  before  the  completion  of  the 
conveyance,  it  was  held  that  the  title  derived  under  tbe  execu- 
tion of  the  attachment  would  prevail  over  that  under  the 
deed.^ 

§  237.  Notice  of  Assignment  Governed  by  same  Principle.  —  So, 
also,  in  a  contest  between  two  creditors  of  a  mortgagee,  one  of 

'  Kelly  V.  Mills,  41  Miss.,  2G7. 

"  Reichert  v.  McClure.  28  Ills  ,  516. 

'Dixon  v.  Doe,  1  Sm  &  Mavsli.,  70;  Piiest  v.  Rice,  1  Pick.,  164 

*  Gushing  v.  Hard,  4  Pick.,  252. 


KEtilSTKATION    OF    INtJTKUMEKTS.  103 

tliera  obtained  an  assignment  of  the  security  while  an  assign- 
ment to  the  other  was  being  drawn,  and  made  haste  to  have  it 
lirst  recorded,  his  diligence  in  taking  advantage  of  the  compliant 
disposition  of  the  debtor,  and  the  deliberate  movements  of  the 
other  creditor,  gave  him  the  better  title  to  the  mortgage.  He  was 
not  informed  of  the  assignment  to  the  other,  after  it  was  made, 
and  could  not  be  charged  with  notice  of  a  fact,  by  information 
received  before  the  fact  was  accomplished.  The  mere  circum- 
stance that  he  knew  of  his  rival's  intention  to  obtain  an  assign- 
ment of  the  security  could  give  that  rival  no  superior  equity. 
So  that  his  vigilance  in  being  before  hand  with  the  other 
creditor,  and  getting  his  instrument  first  of  record,  was  suffi- 
cient to  give  him  the  paramount  right.^ 

§238.  Judgments  given  Precedence  over  Prior  Deeds. — In  some 
instances,  the  courts,  under  the  peculiar  wording  of  the  record- 
ing acts  of  their  states,  or  influenced  and  controlled  by  earlier 
decisions  of  the  same  courts,  have  held  that  a  creditor  would 
not  be  aifected  by  the  registration  of  a  prior  deed,  subsequent 
to  the  obtaining  of  a  judgment,^  or  even  the  contraction  of  the 
debt  for  which  the  judgment  is  rendered.^ 

§239.  Deed  takes  Priority  if  Registered  before  Execntion  Sale. 
—  The  better  oj)inion  seems  to  be,  however,  under  statutes 
rendering  unrecorded  deeds  void,  as  against  subsequent  pur- 
chasers and  mortgagees,  without  notice,  and  for  a  valuable 
consideration,  and  where  judgments  become  liens  upon  the 
real  estate  of  the  debtor  from  their  rendition,  that  Mdiere  a 
deed  or  mortgage  has  been  executed  and  delivered  prior  to  the 
date  of  the  judgment,  the  purchaser  or  mortgagee  will  be 
entitled  to  the  protection  of  the  registry  laws  if  his  deed  or 
mortgage  is  filed  for  record  before  the  sale  under  execution.* 


>  Wardin  v.  Adams,  15  Mass.,  233. 

"Hulings  V.  Guthrie,  4  Penn.  St.,  123;  Taylor  «.  Doe,  13  How.  (U.  S.), 
287. 

'See  Britton's  Appeal,  4'")  Penn.  St.,  172. 

*Greenleaf »  Edes,  2  Minn.,  2;i4;  Davis  <;.  Ownsby,  14  Mo.,  170;  Valen- 
tine V.  Havener,  20  Id.,  133;  Mann  v.  Besl,  (J2  Mo.,  4'.il,  and  cases  citeJ. 


104  NOTICE    TO    PUK0HA8EKS. 

§  240.  Jndgnieiits  do  not  become  Liens  after  Conveyjuice  and 
before  Registry.  —  So,  wliei'e  purchasers  and  mortgagees  were 
allowed  ninety  days  within  which  to  deposit  their  deeds  and 
mortgages  for  record,  and  a  purchaser  allowed  the  time  to  pass 
without  recording  his  deed,  before  he  had  deposited  it  for 
record,  judgment  was  obtained  against  the  former  owners  and 
one  A  became  "replevin  bail"  upon  the  faith  of  representa- 
tions by  the  judgment  debtor  that  the  land  was  unencumbered, 
except  by  the  lien  of  the  judgment.  In  an  action  by  the 
replevin  bail  for  the  purpose  of  securing  indemnity  through 
the  means  of  the  judgment,  for  his  collateral  undertaking,  it 
was  held  that  the  judgment  was  no  lien  upon  the  land,  for 
the  reason  that  the  debtor  had  no  title  to  the  land  at  the  time 
it  was  rendered  and  the  replevin  bail  could  occu])y  no  better 
position  with  respect  to  the  judgment  than  the  creditor  him- 
self would  have  enjoyed.^ 

§  241.  Title  not  AfTeoted  by  Recording  Deed  after  Title  Vests  in 
Innocent  Pnrcliaser.  —  The  title  having  once  passed  through  the 
hands  of  a  purchaser  for  value,  and  without  notice  of  a  prior 
unregistered  deed,  it  will  pass  to  subsequent  grantees,  unaffected 
by  the  prior  conveyance  whether  subsequently  recorded  or  not. 
So,  where  one  who  purchased  with  notice  and  before  the  regis- 
tration of  the  prior  deed,  conveys  to  another  who  has  no  actual 
or  constructive  notice  of  such  instrument,  the  title  of  his 
ijrantee  is  orood  aOTinst  the  former  unrearistered  convevance. 
Should  this  last  grantee  convey  to  still  another  who  had  both 
actual  and  constructive  notice  of  the  prior  deed,  his  title  would 
be  good  in  spite  of  the  outstanding  conveyance.^ 

§242.  Reasons  for  the  above  Doctrine.  —  It  would  be  but  a 
doubtful  protection  to  a  bona  fide  purchaser,  if  his  reliance 
upon  the  record  only  gave  him  a  title  to  the  property  pur- 
chased, which  tlie  law  rendered  inalienable  except  to  those  who 
miglit  be  as  ignorant  of  the  adverse  claim  as  he  was  himself 
before  the  purchase.     The  law  having  declared   that  the  deed 

» Runyan  ».  McClellan,  34  Ind.,  165. 

'Trull  V.  Bigelow,  l(j  Mass.,  40(5;  Sonips  n.  Brewer,  2  Pi«-.lv.,  184. 


REGISTKATION    OF    l.N-^TKL  MKMS.  105 

was  void  as  to  him,  meant  that  the  title  which  lie  ohtained 
!-hould  be  as  absohite  and  unlmrthened  by  tlie  unregistered 
deed,  or  those  claiming  under  it,  as  though  no  such  instrument 
was  ever  executed.  The  title  cannot  be  wrested  from  him  by 
the  negligent  grantee,  nor  will  the  law  allow  the  value  of  the 
property  to  be  diminished  in  his  hands  by  depriving  him  of 
the  benefits  of  a  free  market.^ 

§  243.  EfTect  (tf  Repnrcluise  by  Fraiululeiit  Grantor.  —  But 
should  the  premises  come  again  to  the  hand^^  of  the  fraudulent 
grantor,  they  will  be  held  by  him  in  trust  for  the  first  grantee. 
It  being  deemed  a  wrong  of  less  magnitude  to  deprive  the 
innocent  purchaser  of  this  one  opportunity  to  sell,  than  it 
would  be  to  suffer  the  perpetrator  of  such  a  fraudulent  act  to 
enjoy  any  advantage  over  his  victim.^ 

^  244.  Conflicting  Decisions  as  to  Sufficient  Notice  of  Unregistered 
Deed.  —  There  is  a  raai'ked  contrariety  in  the  autliorities  as  to 
what  is  sufHcient  notice  of  an  unregistered  deed.  This  differ- 
ence, in  Some  instances,  is  owing  to  the  different  statutory  pro- 
visions of  those  states  wliere  tlie  question  has  been  adjudi- 
cated. In  other  instances,  tliere  are  conflicting  decisions  as  to 
the  proper  coTistruction  of  similar  or  even  identical  statutes, 
by  which  decisions  the  law  is  regarded  as  settled  within  the 
iurisdiction  of  the  courts  by  which  they  are  rendered. 

^245.  Express  Notice  Required. —  In  some  of  the  cases  it  has 
been  decided  that  nothing  short  of  express  notice  of  the  prior 
unregistered  deed  will  suffice  to  charge  the  subsequent  pur- 
chaser, and  protect  the  title  of  the  prior  grantee.  The  infor- 
mation by  which  the  subsequent  grantee,  or  mortgagee  is 
advised  of  the  existence  of  the  prior  unregistered  instrumeut, 
to  be  effective,  must  be  so  direct  and  ]iositive  that  to  disregard 
it  would  amount  to  fraud  on  his  ])art.'' 

'  Ante.  §§  61,  62. 

*Ante.  ^03. 

*Pomroy».  Stevens,  11  Mete.  (Mass.),  244;  SiKjfTtml  u.  Weston,  29  Me., 
140;  Porter i).  Seyv-,  48 /(f.,  .")1!»;  Doolcy  «.  Wolcott.  4  Allen,  40(!;  Lilliard 
V.  Ruckers,  0  Yer^.,  64;  Dcwcy  o.  Litll(!j<'liii,  2  Ired.  Eq.,  4!j.'5;  Mayliiuu  v. 


106  OTICE   TO    PUKCHAbERS. 

§  246.  Aotnal  or  Constructive.  —  Others  liold  that  the  notice 
may  be  either  actual  or  coustructiv^e,  express  or  implied.  And 
Avliere  actual  notice  is  required  b}'  statute,  they  vary  in  their 
construction  of  tlie  law  as  to  the  evidence  by  which  such  notice 
may  be  established.  These  latter,  in  furtherance  of  the  lib- 
eral construction  given  for  the  benefit  of  the  grantee  whose 
deed  is  unrecorded,  hold  that  any  fact  coming  to  the  kno'^-l- 
edge  of  the  subsequent  purchaser,  sufiicient  to  put  a  man  of 
ordinary  prudence  upon  inquiry,  and  which,  if  followed  out 
would  lead  to  express  notice  of  the  unregistered  conveyance, 
or  claim,  is  sufficient  to  invalidate  the  subsequent  deed,  not- 
withstanding the  provisions  of  the  registry  laws.  Notice  is 
imputed  to  him  on  account  of  his  negligence  in  not  prose- 
cuting liis  inquiries  in  the  direction  indicated.'^ 

§  247.  Different  Kinds  of  Notice  Referred  to.  —  As  to  the  (;ftect 
of  the  doctrine  of  lis  pendens,  and  notice  arising  from  reci- 
tals in  the  conveyances  forming  the  chain  of  title  of  the  pur- 
chaser, and  also  as  to  notice  by  possession,  the  reader  is  referred 
to  the  parts  of  this  chapter  where  these  topics  are  separately 
treated,  and  more  fully  illustrated  by  reference  to  adjudged 
cases,  classified  under  their  respective  heads." 

§  248.  Cases  Holding  Notice  Ineffectnal  against  the  Record.  — 
Some  of  the  cases  cited  in  support  of  the  strictest  construction 
of  the  statute,  as  Lilliard  v.  Euckers,  and  Dewey  v.  Little- 
johns,  take  the  extreme  position  that  personal  notice  of  an 
unregistered  deed  will  not  afifect  the  subsequent  purchaser  who 
relies  upon  the  record.   So,  in  the  case  of  Mayham  v.  Coombs,* 

Coombs,  14  Ohio,  428;  Hinc  v.  Dodd,  3  A.tk.,  275;  Jackson  v.  Vanvalken- 
burgh,  8  Cow.,  260;  Jolland  c.  Stainbiidge,  3  Ves.,  Jr..  478. 

'  Porter  v.  Cole,  4  Me.,  20 ;  Wliitbread  v.  Jordan,  1  Yoimg  &  Colyer,  303 ; 
Williamson  v.  Brown,  15  N.  Y.,  354 ;  Krider  v.  Lafferty,  1  Wliart.,  303 ;  Han- 
kinson  v.  Barbour,  29  Ills..  80;  Hopkins  v.  Gt-rrard,  7  B.  3Ionr.,  312;  Curtis 
D.  Mundy,  3  Mete.  (Mass.),  405;  Clark  v.  Triudle,  52  Pa.  St.,  492;  Dixon 
v.  Doe,  1  Sm.  &  Marsh.,  70;  Taylor  v.  Lowensteln,  50  Miss.,  278;  Edwards  v. 
Thompson,  71  N.  C,  177;Musgrove  v.  Bonser,  5  Oregon,  313;  Nute©.  Nute 
41  N.  H.,  60;  Galland  v.  Jackman,  26  Cal.,  79. 

5  See  Post,  III.,  IV.,  V. 

'  Supra. 


EEGISTBATK>-\    (»F    INKrRUMKNTS.  107 

which  was  decided  under  a  statute  rendering  nnregistered 
mortgages  ahsolntelj  void  as  to  the  subsequent  purchases  or 
incumbrances,  the  court  gave  the  statute  such  a  construction 
as  would  render  notice  by  any  other  means  ineffectual. 

§  2J:9.  Cases  Holding  Implied  Notice  Suffifient.  —  The  cases  of 
Williamson  v.  Brown,^  Whitbread  v.  Jordan,'  and  most  of 
the  others  cited  in  support  of  the  more  liberal  construction,  go 
upon  the  ground  that  even  actual  notice  is  a  fact  to  be  estab- 
lished by  evidence,  and  may  be  proved  otherwise  than  by  evi- 
dence of  direct  personal  information.  They  also  hold,  for  the 
most  part,  that  voluntary  ignorance  on  the  part  of  the  pur- 
chaser is  the  legal  and  logical  equivalent  of  actual  knowledge. 

§250.  Illustration  of  Implied  Notice, — Musgrove  v.  Bonser,^ 
was  a  case  where  the  deed  had  been  copied  upon  the  records, 
but  because  it  was  improperly  acknowledged  before  recording, 
the  record  was  held  a  nullity  as  constructive  notice.  But  the 
attorney  who  was  employed  hy  the  subsequent  purchaser  to 
search  the  record  for  instruments  affecting  the  title,  saw  the 
defective  record  of  the  deed  in  question,  and  informed  the 
purchaser  that  it  had  no  right  on  record.  Upon  the  ground  that 
notice  to  the  agent  was  notice  to  the  principal,  the  court  held 
that  the  actual  knowledge  the  attorney  had  of  the  defectively 
acknowledged  deed  was  sufficient  to  have  put  a  man  of  ordi- 
nary prudence  upon  such  inquiry  as  must  have  inevitably  led 
to  the  knowledge  of  the  unrecorded  deed,  and  that  it  was 
therefore  binding  upon  the  purchaser's  conscience.* 

§  251.  Any  Kind  of  Notice  will  affect  Purchaser.  —  From  a 
careful  consideration  of  the  authorities,  old  and  new,  English 
and  American,  it  seems  that  the  better  doctrine  is  now,  except 
where  the  statute  is  im])erative  in  its  ])i'ovisions  to  the  con- 
trary, that  any  species  of  notice,  by  which  one  seeking  to  pur- 
chase real  estate  is  informed  of,  or  cautioned  in  regard  to,  any 


'  tiupra. 
'^  Svpra. 
'  Supra. 
'  See  Barnes  v.  Mc(/lint<>ii,  8  Penn.,  67. 


lUS  NOTICE    TO    Pt:K<!HASEKS. 

unregistered  iiistruinent  affecting  the  title  to  the  property,  or 
any  eajiitable  interest  claimed  by  any  one,  will  as  effectually 
hind  such  property  in  the  hands  of  such  purchaser,  as  it  would 
in  the  hands  of  the  fraudulent  grantor.* 

^  252.  Putting  npon  Inquiry  Held  Insufficient.  —  The  case  of 
Jackson  v.  Yanvalkenburg,^  is  one  of  those  in  which  it  is  dc' 
clared  that  notice  of  an  antecedent  unregistered  mortgage 
upon  the  leasehold,  to  the  assignee  for  value,  of  a  subsequent 
mortgage  upon  the  fee  of  the  same  premises,  in  order  to 
affect  his  rights  under  the  assignment,  must  be  such  as  would 
with  the  attendant  circumstances  be  sufficient  to  fix  upon  him 
the  imputation  of  a  fraudulent  purpose  in  accepting  the 
assignment.  It  was  held  that  putting  the  party  upon  inquiry 
was  not  sufficient.  The  circumstances  of  this  particular  case 
were  such  that  it  may  well  be  doubted  whether  such  notice  as 
the  assignee  had,  was  sufficient  to  put  him  upon  inquiry 
respecting  a  mortgage,  as  what  he  learned  was  from  the  record 
of  an  absolute  assignment  of  the  lease,  without  the  defeasance 
which  should  have  been  recorded  with  it.^ 

§  253.  Knowledfi^e  of  Mortgage  witlilield  from  Record.  —  Where 
a  mortgage  is  designedly  withheld  from  registration,  in  order  to 
])resei"ve  the  credit  of  the  mortgagor  in  the  commercial  world, 
such  conduct  on  the  part  of  the  mortgagee  is  not  fraudulent  as 
to  one  having  knowledge  of  the  entire  transaction,  as  he  is 
not  deceived  by  it.  And  whatever  might  be  the  rights  of  a 
party  who  purchased  in  ignorance  of  the  facts,  the  one  who 
seeks  to  take  advantage  of  an  unregistered  instrument,  of  the 
existence  of  which  he  has  been  fully  informed,  will  be  allowed 
to  enjoy  no  special  advantages,  from  the  fact  that  the  failure 
to  record  the  mortgage  was  frauduk'nt  as  to  others.'* 

§254.  Record  of  Instrument  Affecting  Equitable  Interest.  —  The 
record  of  an  assignment  or  mortgage  of  an  equitable  interest 


1  Porter  v.  Cole,  4  Me.,  30.     See  Ante,  Cli.  I,  Actual  Norice. 
-  Supra. 

2  See  Ante,  §  186,  ct  seq. 

*  Pike  V.  Armstead,  1  Dev.  Eq.,  110. 


KKCatSTKATION    OF    JNSJ'KUMENTS.  109 

in  real  estate  will  operate  as  notice  to  subsequent  purchasers 
or  mortgagees,  as  eiiectually  as  though  the  legal  title  were 
conveyed  or  incumbered.  As  where  one  purchases  land  for 
which  he  receiv^es  a  title-bond  instead  of  a  deed,  conditioned 
that  the  legal  title  shall  be  conveyed  to  him  when  the  land  is 
paid  for,  which  bond  is  duly  recorded;  and  before  paying  for 
the  land,  the  purchaser  mortgages  his  interest,  and  subse- 
(|uently  the  mortgagor,  in  order  to  meet  the  demands  of  his 
grantor,  executes  a  mortgage  to  still  another  party,  and  with 
the  proceeds,  pays  for  the  laud  and  receives  a  deed.  In 
such  case  the  release  from  the  vendor's  lien  inures  to  the 
benefit  of  the  first  mortgagee,  and  the  second  mortgagee,  by 
the  record  of  the  title-bond  and  the  first  mortgage,  is  charged 
with  notice  of  the  rights  thereby  secured.^ 

§  255.  Effect  of  Witlulrawiiig  Deed  from  Files  before  Recording. 
— But  when,  as  in  the  case  of  Glamorgan  v.  Lane,^  the  grantee 
placed  his  deed  on  record  on  the  twenty-sixth  day  of  the 
month,  and  a  subsequent  purchaser  received  a  deed  to  the 
same  premises  from  the  same  grantor  on  the  twentj'-seventh, 
which  he  placed  on  record  in  the  forenoon,  and  the  first 
grantee  withdrew  his  deed  from  the  files  to  be  canceled,  and 
accepted  another  deed  which  he  deposited  for  record  in  the 
afternoon  of  the  twenty-seventh,  it  was  held  that  the  record 
of  the  first  deed  was  no  notice  of  the  one  given  in  lieu  thereot, 
and  that  the  prior  purchaser  could  not  claim  priority  of  record 
after  withdrawing  the  first  deed  from  the  files.  ^ 

§  256.  Priority  Secured  by  Registration.  —  Under  statutes 
which  prescribe  no  time  within  which  the  instrument  may  be 
recorded,  the  courts  have  generally  regarded  the  first  recorded 
of  two  instruments  aflfecting  the  title  to  the  same  land,  as  the 
one  entitled  to  precedence.  As  where  a  grantor  took  a  mort- 
gage for  a  portion  of  the  purchase  price,  and  entrusted  it  to 

'  Alderson  v.  Ames,  6  Md.,  52;  Glamorgan  c.  Lane,  0  Mo.,  446;  Gen'l  Jus. 
Co.  V.  U.  S.  Ins.  Co.,  10  Md.,  517;  U.  S.  Ins.  Co.  «.  Siiriver,  3  Md.  Ch.,  381. 
"  Supra. 
*  Kiser  v.  Houston,  38  Ills.,  252. 


110  NOTICE    TO    PQKCHASEKS. 

the  mortgagor  with  directions  to  have  it  recorded,  but  before 
dei)ositing  it  for  record  the  mortgagor  entered  into  a  written 
contract  with  another  party,  who  had  no  notice  of  the  mort- 
gage, to  convey  the  land  to  him.  The  mortgage  being  recorded 
prior  to  the  recording  of  the  contract,  and  before  the  latter 
was  either  carried  out  or  brought  to  the  knowledge  of  the 
mortgagee,  it  was  held  that  he  might  subject  the  land  to  the 
payment  of  his  debt  as  though  the  contract  had  not  been 
made.^ 

§257.  Fraiul  Practiced  by  Agent.  —  it  has  been  held,  where 
there  was  a  similar  statute  to  tJie  one  under  which  the  case 
cited  above  was  decided,  where  the  claim  for  precedence  was 
being  contested  in  a  court  of  equity,  that  the  court  would  deter 
mine  the  relative  rights  of  the  parties  on  equitable  principles.*'' 
It  is  difficult  to  understand  how  a  court  of  equity  could  tol- 
erate such  a  palpable  fraud  as  was  apparently  perpetrated  upon 
the  innocent  contracting  party  in  tlie  Ohio  case.  The  mort- 
gagee, by  entrusting  his  security  to  the  mortgagor,  not  only 
made  him  his  agent,  but  did  so  with  the  knowledge  that  he,  of 
all  others,  was  most  interested  in  violating  his  trust,  and  by  so 
doing  enabled  him  to  practice  a  fraud  upon  ethers. 

§  258.  Vague  Infonnatioii  Disregarded.  —  The  case  of  Jol- 
land  V.  Stainbridge,^  which  has  been  cited  as  one  in  which 
express  notice  is  required  in  order  to  deprive  a  subsequent 
purchaser  or  moi-tgagee  of  the  protection  of  the  registry  laws, 
was  a  contest  between  one  claiming  under  an  unregistered  will, 
and  a  subsequent  mortgagee.  The  evidence  of  notice  was  that 
the  mortgagee  was  told  while  negotiations  were  pending,  that 
the  person  t)ffering  the  premises  had  no  right  to  sell  the  same. 
Also  the  evidence  of  the  mortgagee's  bookkeeper,  that  the 
wife  of  mortgagee  told  the  witness,  in  the  presence  and  hear- 
ing of  her  husband,  prior  to  the  mortgage,  that  the  devisee's 
mother  had  told  the  mortgagee  not  to  purchase,  as  the  estate 

'  Ankelol  v.  Converse,  17  Ohio  St.,  11. 

-  Swio-ert  v.  Bk.  of  KenUuky,  17  B  Monr.,  308. 

■'3  Ves.,Jr.,  478. 


KKGISTKA'l'lON    OK    INSTKUMENTS.  Ill 

belonged  to  Ler  danglitcr.  Still  the  court  held  that  the  evi- 
dence of  notice  was  not  t^nch  as  would  show  conduct  on  the 
part  of  the  mortgagee  amounting  to  actual  fraud,  and  gave  the 
preference  to  the  subsequent  registered  mortgage. 

§  259.  Sxibsequent  Purcliase  Not  Invalulatod  by  Notice  of  Prior 
Deed. — Notice  will  not  always  invalidate  a  sulisequent  pur- 
chase, even  when  it  is  so  direct  and  positive  as  to  be  equivalent 
to  actual  knowledge.  Circumstances  may  arise  where  a  pur- 
chase, subsequent  to  an  unregistered  conveyance,  may  be  made 
in  such  good  faith  that  it  will  be  protected,  even  though  the 
purchaser  has  undeniable  knowledge  of  the  prior  deed.  As 
where  he  is  informed  by  the  prior  grantee  himself  that  the 
deed  is  withheld  from  the  record  because  he  does  not  intend  to 
assert  any  title  under  it,  and  that  it  was  never  intended  to 
operate  as  an  actual  conveyance  of  the  land,  and  the  second 
purchase  is  made  in  reliance  upon  these  representations. 

§  260.  Same  Doubtful  Autlioritj-.  —  A  court  of  equity  has  even 
declared  the  doubtful  doctrine  that  a  subsequent  purchaser 
would  be  protected,  when  he  acted  in  good  faith,  after  notice  of 
the  prior  unregistered  deed,  because  he  had  been  informed  of 
the  intention  of  such  grantee  not  to  record  his  deed  or  assert 
his  title,  where  it  did  not  a])pear  that  the  information  came 
from  the  grantee   himself.^ 

§  261.  Record  Chain  of  Title  Incomplete.  —  The  purchaser  may 
be  served  with  constructive  notice  by  registration,  even  when 
the  complete  chain  of  title  does  not  appear  of  record.  The 
connection  between  tlie  title  or  interest  with  notice  of  which 
lie  is  charged  by  tlie  record,  and  that  upon  which  it  depends, 
may  be  independent  of  the  record.  As,  where  the  provision 
of  the  statute  was,  that  every  Instrument  affecting  the  title  of 
real  estate  from  the  time  of  filing  with  the  register  of  deeds 
for  record,  "shall  im])art  notice  to  all  persons  of  the  contents 
thereof;  and  all  subse(juent  [)ureliasers  and  mortgagees  shall  be 
deemed  to  ])urcliase  with  notice,"  it  was  held  that  one  purchas- 

'Fleniin)^  »;.  P>iiri,Hii,  2  Iri'<i<^ll  K.|.,  584. 


112  NOTJCK    TO    I'l  KiUASKKS. 

iiig  witli  iio':ice  of  an  ontstundiiig  mi  registered  e(^nitable 
interest  in  land,  was  cliargeable  with  notice  of  an  incumbrance 
of  such  interest  which  liad  been  tiled  for  record,  thougli  he  may 
iiave  purchased  without  actual  notice  of  such  mortgage.^ 

^  262.  Assignee  of  a  Mortgage  Regai'ded  as  Purchaser,  —  The 
assignee  of  a  mortgage  will  be  protected  to  the  same  extent 
as  any  other  innocent  purchaser.^  As  where  a  mortgage  was 
given  to  secure  a  debt,  siibsequent  to  a  deed  conveying  the  same 
premises  to  another,  but  the  deed  was  not  recorded  until  after 
the  mortgage  had  been  assigned  to  a  hona  fide  pui'chaser  for 
value,  and  the  mortgagee  took  the  mortgage  without  notice  of 
the  unregistered  deed,  it  was  held  that  the  assignee  was  not 
affected  by  the  subsec^uent  registration  of  the  deed,  but  would 
still  be  entitled  to  subject  the  land  to  the  payment  of  his 
demand/' 

§  203.  Thue  of  Notice.  —  The  time  when  the  notice  is  imparted 
to  a  subsequent  purchaser  is  often  material  in  determining 
whether  or  not  his  purchase  will  be  affected  thereby.  The  notice, 
in  order  to  affect  his  conscience,  may  have  been  given  too  long 
before  his  acquisition  of  title,  to  render  it  probable  that  the 
fact  of  the  prior  conveyance  \vas  present  to  his  mind  when  he 
made  the  purchase.'* 

§  264.  Same  to  Attaching  Creditor.  —  But  where  land  was 
attached  at  the  suit  of  a  creditor,  as  the  land  of  his  debtor, 
when  he  had  been  informed  by  the  grantee,  two  years  prior  to 
the  attachment,  that  he  had  purchased  the  land  from  the 
debtor,  it  was  held  that  though  the  deed  to  the  purchaser  was 
still  unrecorded  at  the  time  of  the  attachment,  the  notice  was 


'  Jones  c.  Lapham,  15  Kans.,  540. 

'  But  the  purchasfjr  of  a  mortgage  will  have  constructive  notice  from  the 
record,  of  a  mortgage  of  even  date,  though  recorded  subsequent  to  the  one 
purchased,  if  such  purchase  was  subsequent  to  the  recording  of  the  other 
iuslrument.    Van  Aken  v.  Gleason,  34  Mich.,  477. 

^Mott  v.  Clark,  9  Pa.  St.,  399. 

*■  Boggs  -0.  Varner,  6  W.  &  S.,  469 ;  Fuller  e.  Bennett,  2  Hare,  394 ;  Worsky 
f).  Earl  of  Scarborouffh,  3  Ark..  392. 


BEGISTKATION    OF    INISTKUMENTS.  113 

Bufficient,  and  the  purchaser's  title  would  be  protected  as  against 
the  attaching  creditor.* 

§  265.  When  Notice  too  Late.  —  The  notice  may  also  he  too 
late  to  be  effectual  against  those  who  subsequently  acquire  title 
to  the  premises,  or  an  equitable  interest  therein.  On  this 
point  there  lias  been  no  little  contrariety  of  opinion  expressed 
by  the  courts,  at  different  times, — partly  owing  to  difference 
in  the  statutes,  but  in  some  instances  the  decisions  are  at  vari- 
ance, where  the  statutes  construed  are  substantially  the  same. 
However,  it  will  be  found  to  be  almost  uniformly  held  that  the 
notice  is  too  late  if  it  comes  to  the  purchaser  only  after  he  has 
completed  the  purchase  and  paid  the  consideration.^ 

§  260.  After  Purchase  at  Execution  Sale.  —  It  has  been  main- 
tained, however,  that  a  purchaser  at  an  execution  sale  directed 
by  the  creditor  in  good  faith,  after  having  made  the  purchase 
is  entitled  to  his  deed,  even  though  he  receives  notice  of  a 
prior  unregistered  deed  previous  to  his  payment  of  the  pur- 
chase money.  And  it  is  further  held  that  his  rights  v^-ill  not 
be  affected,  either  by  the  fact  that  he,  being  a  stranger  to  the 
execution,  had  notice  of  the  prior  deed,  or  that  he  is  himself  the 
execution  creditor,  provided  he  had  no  notice  before  the  sale. 
But  should  the  knowledge  of  the  adverse  interest  come  to  him 
in  the  way  of  an  announcement  at  the  time  of  the  sale,  and 
before  it  is  closed,  the  title  ac(j[uired  by  the  purchase  will  be 
subordinate  to  that  of  the  prioi*  grantee.^ 

§  267.  Before  Legal  Title  is  Conveyed.  —  Upon  the  other  hand, 
it  has  been  held  by  the  same  court  in  which  the  above  doctrine 
was  announced,  that  a  purchaser  of  land  takes  subject  to  prior 
equities  of  which  he  has  notice,  although  the  contract  is  com- 
pleted, and  even  the  ])urchase  money  paid  before  notice  is 
given  of  the  antecedent  claim,  provided  he  is  notified  before 
his  own  equity  is  clothed  with  the  legal  title,  and  creditors  to 


'  Ogden  X.  Iluven,  24  Ills.,  57;  Cox  v.  Milncr,  23  Id.,  476. 
'  Henry  v.  Rjiiinfin,  2.')  Fenn.  Si  ,  854  ;  see  also  Ante,  Pt.  I. 
'Low  D.  lilinco,  10    Bush  (Ky.),  ;}31 ;    Morton    o.  Robanls,  4  Dana,  358; 
Halleyu.  Oldham, 5  B.  Mour.,  2:5:3;  llighler  j.v  Forrester,  1  Bush,  2T». 
8 


114  NOTICE    TO    PUKCKASERS. 

whom  the  title  is  transferred  by  operation  of  law,  occupy  no 
better  position  than  any  other  subsequent  purchaser.^ 

§268.  Time  of  Filing  for  Record  Fixed  by  Statute. — In  those 
states  where  a  certain  period  of  time  is  fixed  by  statute  within 
which  the  instrument  is  required  to  be  lodged  with  the  officer 
for  registration,  the  failure  to  deposit  it  for  record  within  the 
time  prescribed,  does  not  always,  as  we  have  seen,^  operate  to 
invalidate  the  record.  It  is,  in  general,  good  for  all  the  pur- 
poses for  which  it  was  originally  designed,  from  the  date  of 
its  filing  for  record,  whenever  that  is  after  the  time  prescribed.'^ 
But  it  has  been  decided  that  a  voluntary  deed  to  be  efifectual 
as  against  creditors  of  the  grantor  without  notice,  should  be 
recorded  within  three  months  of  the  delivery  of  the  deed, 
where  that  was  the  statutory  time  fixed.'*  The  statute  was 
construed  with  the  same  strictness  in  favor  of  a  subsequent 
mortgage  given  to  secure  the  debt  of  the  husband,  where  the 
prior  voluntary  deed  was  from  the  husband  to  the  wife.^ 

§  269.  Recording  After  Death  of  Grantor.  —  It  has  also  been 
xield  that  the  registration  of  a  deed  after  the  death  of  the 
grantor,  was  not  good  as  against  creditors  of  the  grantor,  who 
had  no  notice  of  such  conveyance;^  but  the  application  of  this 
rule  would  be  controlled  in  a  great  measure  by  statutory  pro 
visions,  as  well  as  by  the  peculiar  circumstances  of  any  case  in 
which  it  might  be  invoked. 

§  270.  Examining  Records  Insufficient  Inquiry.  —  A  purchase!", 
who,  previous  to  the  purchase  is  informed  of  a  prior  unreg- 
istered deed  to  the  same  premises,  and  who  searches  the 
records  without  finding  any  entr}^  of  the  prior  deed,  will  not 
be  pi'otected  as  a  purchaser  in  good  faith,  merely  because  he 
examined  the  records  after  receiving  information  of  the  prior 
deed.     lie  should  have  made  personal  inquiry  from  those  most 

'  Corn  V.  Sims,  3  Met.  (K\-.),  391. 

'  Ante,  §§  102,  223. 

'lb. 

*Fulcber  v.  Royal,  55  Ga.,  68. 

^  Siimuer  v.  Bryan,  54  Id.,  613. 

« Lank  v.  Hilcs,  i  Houst.  (Del.),  87. 


KEGISTKATION    OF    INSTRUMENTS.  11.") 

likely  to  possess  knowledge  of  the  conveyance,  and  from  the 
character  of  the  discoveries  made  in  the  course  of  such  in- 
quiry, been  warranted  in  believing  that  no  such  deed  had  ever 
been  executed  and  delivered.^ 

§  271.  Unrecorded  Chattel  Mortgage.  —  Under  a  statute  which 
rendered  a  mortgage  of  chattels  void,  except  as  against  the 
mortgagor  and  his  heirs,  unless  recorded,  it  was  held  that 
such  a  mortfirao-e  was  ofood  ao-ainst  an  attachinof  creditor  with 
notice.  And  also  that  notice  to  the  officer  levying  the  attach- 
ment, was  notice  to  the  creditor  by  whom  the  aUachment  was 
directed.^ 

§272.  Descrij)tion  of  Debt  in  Mortgage.  —  In  some  cases  con- 
siderable strictness  has  been  required  in  mortgages,  to  render 
their  registration  effectual,  in  the  description,  not  only  of  the 
property  incumbered,  but  of  the  debt  thereby  secured.  In 
general,  however,  more  recent  decisions  have  favored  such 
modifications  of  the  rules  in  regard  to  specification  of  the 
amount  of  debt,  and  the  nature  of  the  evidences  thereof,  that 
mortgages  to  secure  future  advances,  are  permitted,  when  the 
amount  to  be  secured  is  necessarily  uncertain.^ 

'  Shotwell  V.  Harrison,  30  Mich.,  179. 

2  Tucker  v.  Tilton,  55  IST.  H.,  228. 

'  Witczinski  v.  Everman,  51  Miss.,  841.  See  also  United  States  v.  Hooe,  3 
Cranch,  73;  Shirras  v.  Caig,  7  Cranch,  34;  Leeds  v.  Cameron,  3  Sunin.,  488; 
Commercial  B'k  v.  Cunningliam,  24  Pick.,  270 ;  Goddard  v.  Sawyer,  9  Allen 
78:  James  v.  Morey,  2  Cow.,  246,  292.  It  is  held  in  the  latter  case,  however, 
that  the  lecord  of  an  aftsignn/ent  of  a  mortgage  will  not  be  notice  to  subse- 
quent purchasers,  because  it  is  not  required  to  be  registered.  It  is  laid  down 
in  .lones  on  Mortgages  (§365),  as  the  English  rule,  with  respect  to  notice,  a.s 
it  affects  mortgagees  for  future  advances,  that  notice  to  such  a  mortgagee  of 
a  subsequent  incumbrance,  will  render  any  advances  made  thereafter,  sub- 
servient to  the  lien  of  the  second  mortgagee.  But  such  does  not  seem  to  b«» 
the  rule  in  this  country. — Jones  on  Mortgages,  §§  365,  366,  367,  and  cases 
cited. 


116  NOTICE    TO    PURCHASERS. 


III.  Notice  by  Possession. 

§  278.  General  Doctrine. 

274.  Mcxlitied  by  Registry  Laws. 

27.3.  Evidence  of  Actual  Notice. 

27(5.  Sufficient  to  put  Purchaser  upon  Inquiry. 

277.  Same. 

278.  Efi'ectof  Knowledge  of  Possession. 

279.  Voluntary  Ignorance. 

280.  Character  of  Possession. 

281 .  Possession  by  Tenant. 

282.  Notice  of  Interest  claimed  by  Occupant. 

283.  Notice  of  Interest  of  Occupant's  Creditors. 

284.  Tenant's  Occupancy,  Notice  of  Landlord's  Title. 

285.  Same. 

280.  Consistency  of  Foregoing  Doctrine. 

287.  Possession  no  Evidence  of  Title  in  Stranger. 

288.  Must  be  Actual,  Notorious  and  Continuous. 
28y.  Occupancy  by  Church  Society. 

290.  Exclusive. 

291.  Unequivocal. 

292.  Doubtful  in  E.xtent. 

293.  Same. 

294.  Possession  and  Right  Claimed,  Contemporaneous. 

295.  Instance  of  Exception  to  the  Rule. 
290.  Effect  of  Abandoning  Possession. 

297.  Possession  Referred  to  Record  Title. 

298.  Same. 

299.  Claim  Consistent  with  Record  Title. 

300.  Notice  of  Reservation  of  Easement. 

.SOL  Exception  to  Rule  Requiring  Consistency. 

302.  Possession  to  Begin  with  Unrecorded  Title. 

303.  Possession  as  Lessee  Changed  to  Possession  as  Owner. 

304.  The  Rule  in  Mississippi. 

305.  Creditors  Affected  with  Notice. 

306.  Possession  of  Chattels. 

§273.  General  Doctrine.  —  The    doctrine  seems  quite  firmly 
eBtabliBhed,by  successive  judicial  decisions,  both  in  this  country 


NOTICE    BY    POSSESSION.  117 

and  ill  England,  that  open,  notorious  nnd  exclusive  possession  of 
real  estate,  under  an  apparent  claim  of  ownership,  is  notice  to 
those  who  subsequently  deal  with  the  title,  of  whatever  inter- 
est the  one  in  possession  has  in  the  fee ;  whether  sucli  interest 
be  legal  or  equitable  in  its  nature.'  In  general,  the  possession 
upon  which  such  claimants  rely  as  notice  to  purchasers,  is  held 
under  and  pursuant  to  an  unrecorded  deed,  or  a  contract  of 
purchase,  which  if  in  writing  is  unrecorded,  and  if  merely  a 
parol  agreement,  depends  upon  its  partial  execution,  to  entitle 
the  covenantee  to  specific  performance. 

§2T4.  Modified  by  Registry  Laws, — The  application  of  this 
doctrine  to  possession  under  unregistered  conveyances,  has,  it 
is  true,  been  somewhat  modified  by  the  registry  laws ;  and  in 
one  state,  at  least,  it  has  been  so  frequently  held,  under  the 
recording  act  of  that  Comjnonwealth,  that  possession  under  an 
unrecorded  deed,  will  not  amount  to  notice  of  the  title  by 
which  the  possessor  holds,  that  it  may  now  be  regarded  as  a 
settled  rule  of  property,  so  far  as  the  jurisdiction  of  her 
courts  extends.^  There,  the  statute  provides  in  substance 
that  nothing  sliort  of  actual  notice  of  an  unrecorded  deed 
will  suffice  to  invalidate  the  title  of  a  subsequent  purchaser 
or  mortgagee,  and  it  is  lield  that  proof  of  such  notice  is  not 
made  out,  simply  by  showing  that  the  grantee  under  the 
unrecorded   instrument   was  in  o]jen  occupation  of  the  land, 


'  McLaughlins,  SlK])lur(l,  S2  Me.,  14:^;  Hardy  «.  Summers,  10  Gill  & 
J.,  316;  Wickes  tJ.  Lake,  2.")  Wis.,  71;  McCuiloch  ij.  Cowher,  5  Watts  & 
Serg.,  437 ;  Woods  v.  Fannere,  7  Watts,  885 ;  Bailey  v.  White,  13  Tex.,  114 ; 
Davies  D.  Hopkins,  15  Ills.,  51J);  Lea  ».  Polk  County  Copper  Company,  21 
How.,  493;  Hughes  «.  United  States,  4  Wall,  232;  Shumate  «.  Reavis,  49 
Mo.,  333;  Chesterman  v.  Gardner,  5  Johns  ,  Ch.,  29;  Tuttle  tJ.  Jackson,  6. 
Wend.,  213;  Morton  «.  Rohards,  4  Dana,  258;  Macon  o.  Sheppard,  2  Humph., 
335;  Burt  v.  Cassety,  12  Ala.,  734;  Dixon  v.  Doe,  1  Sm.  &  Marsh.,  70; 
Johnston  v.  Gloncy,  4  Biackf.,  94;  Harris  v.  Arnold,  1  R.  I,,  125;  Cunning- 
ham ■».  Buckingham,  10.,  127;  Rogers  ?).  Jones,  8N.  H.,  2(54;  Bailey  b. 
Richardson,  15  Eug.  L.  &  Eq.,  218;  Havens  v.  Bliss,  26  N.  J.  Eq.,  363. 

'Sibley  v.  Leffingwell.  8  Allen,  5S4;  Doolcy  v.  Wolcott,  4  Allen,  406 ; 
Mura  V.  Pierce,  9  Gray,  300;  Pomroy  v.  S. evens,  11  Mete,  244. 


118  NOTICE    TO    PURCHASERS. 

and  the  subsequent  purchaser  had  knowledge  of  such  occupa- 
tion. Possession  is  at  most  considered  as  sufficient  to  put 
subsequent  purchasers  upon  inquirj^,  and  under  the  strict  pro- 
visions of  the  statute,  this  is  not  equivalent  to  notice,  for 
the  reason  that  the  purchaser  is  not  bound  to  inquire  bejond 
the  public  record  of  conveyances,  and  his  failure  to  do  so  does 
not  cast  upon  him  either  an  imputation  of  fraud  or  gross 
neslisrence. 

§  276.  Evidence  of  Actaal  Notice. — Under  a  statute  of  precisely 
similar  import,  in  the  State  of  Missouri,^  the  Supreme  Court, 
by  repeated  decisions,  have  settled  the  law  upon  a  construc- 
tion of  the  statute,  directly  opposite  to  that  adopted  by  the 
court  of  last  resort  of  Massachusetts.^  And  even  in  Beatie 
V.  Butler,^  where  a  similar  construction  is  given  to  the  statute 
as  in  the  Massachusetts  cases.  Judge  Scott  in  rendering  the 
opinion,  says;  "The  fact  that  another  is  in  possession,  when 
known  to  a  purchaser,  may  be  submitted  to  a  jury,  in  connec- 
tion with  other  circumstances,  to  show  that  he  had  actual 
notice  of  an  adverse  title."  And  again — "Actual  notice  does 
not  require  positive  and  certain  knowledge,  such  as  seeing  the 
deed  ;  but  that  is  sufficient  notice,  if  it  be  such  as  men  usually 
act  upon  in  the  ordinary  affairs  of  life.  When  it  is  shown 
that  purchasers  are  affected  M'ith  a  knowledge  of  such  circum- 
stances, then  the  foundation  is  laid  from  which  the  inference 
of  actual  notice  may  be  drawn."^  That  portion  of  the  opinion 
^)f  the  learned  judge,  which  repudiates  the  doctrine  that  actual 
notice  may  be  derived  from  the  possession  of  the  premises  by 
the  adverse  claimant,  is  a  mere  d^ctuvi  which  does  not  meet 
with  the  concurrence  of  his  associate.^ 


'  Wag.  Stat.  P.,  277,  §  26. 

^Vaughan  p.  Tracj-,  22  Mo.,  415;  S.  C,  25  Mo.,  318;  Contra  Beatie  v.  But. 
lor,  21  Mo.,  313. 
^  Supra. 

*  See  also  Curtis  v.  Muudy,  3  Mete.,  405. 
'  Separate  opinion  by  Judge  Rylakd,  in  same  case,  21  ^Mo.,  325. 


NOTICE    BY    POSSESSION.  119 

§  276.  Sufficient  to  put  Purchaser  upon  Inquirj\  —  In  a  subse- 
Cjuent  case,^  heard  before  a  full  bench,  this  question  was 
perhaps  more  directly  involved,  and  Judge  Leonard,  delivered 
the  opinion.  While  reversing  and  remanding  the  cause  for 
error  in  instructing  the  jury,  in  substance,  that  possession 
raised  the  legal  presumption  of  title  in  the  possessor,  uses 
the  followino^  lan^uao-e  which  met  the  full  concurrence  of  a 
majority  of  the  court:  "  The  fact  of  possession  might  be  pre- 
sumed to  have  been  within  the  purchaser's  knowledge;  and  if 
knowledge  is  brought  home  to  tlie  purchaser,  that  a  third 
person  is  in  the  possession  and  apparent  ownership  of  the  land, 
it  ought,  under  ordinary  circumstances,  to  be  deemed  sufficient 
information  to  the  second  purchaser,  that  the  possessor  is  the 
owner  in  fee,  under  a  title  derived  from  a  former  owner. "  Later 
cases  by  the  same  court  as  cited  in  the  note,  fullj^  sustain  this 
view  of  the  law.^ 

§27Y.  Same. — Under  a  statute  similar  to  that  of  the  State 
of  Massachusetts  and  Missouri,  the  Supreme  Court  of  the 
State  of  Maine,  although  denying  the  doctrine  oi  constructive 
notice  of  unregistered  conveyances  made  subsequent  to  the 
enactment  of  the  law,  by  possession  under  such  conveyances, 
liave  taken  substantially  the  same  view  of  what  may  be  con- 
&\^QYedi  actual  notice,  as  the  Supreme  Court  of  Missouri.^  That 
possession  and  improvement  by  the  claimant,  brought  to  the 
knowledge  of  the  purchaser,  where  such  possession  is  taken 
under  the  prior  purchase,  is  sufficient  to  put  tlie  subsequent 
]:>urchaser  upon  inquiry  as  to  tlie  character  of  such  possess- 
ion, and  if  the  inquiry  be  made,  it  will  be  presumed,  in  the 
absence  of  evidence  to  the  contrary,  that  it  resulted  in  knowl- 
edge of  any  title  or  interest  in  the  premises,  pursuant  to  which 
the  occupant  held.^ 

'  Vavighan  «.  Tracy,  Supra. 

*  Ante  §  278. 

•  See  Hiuily  v.  Morse,  32  Me.,  287 ;  Boggs  v.  Anderson,  50  Me.,  101  ;  Clark 
v.  Bosworth,  51  Mc.,  528;  Beul  ?.i.  Gordon,  55  Me.,  482;  Spofford  v.  Weston, 
29  Me.,  140:  Hull  v.  Noble,  40  Mo.,  480. 

"  Butler  13.  Stevens,  20,  Me.,  484;  M'Lauglilin  «.  Shepherd,  32  Id.,  148; 
Hackwith  v.  Damron,  1  Mon.,  2:35. 


120  NOTICE   TO    PUKGHASEKS. 

§  278.  Effect  of  Knowledge  of  Possession,  —  Where  tlie  provis- 
ions of  the  recording  act  are  less  strict,  with  respect  to  the 
Ivind  of  notice  required  to  aftect  subsequent  purchasers,  and  it 
simply  provides  that  those  who  purchase  upon  the  faith  of  the 
record,  but  witli  notice  of  prior  legal  or  equitable  titles,  there 
seems  to  be  no  question  but  that  the  possession  of  such  claim- 
ant will  as  eifectually  notify  subsequent  parties  as  any  otlier 
circumstance  the  knowledge  of  which  may  be  bi'ought  home 
to  him.' 

§279.  Voluntary  Ignorance.  —  The  theory  upon  which  the 
cases  proceed  in  holding  possession  to  be  implied  notice,  or 
evidence  of  notice  which  can  only  be  overcome  by  a  purchaser, 
by  proof  that  tlie  inquiries  suggested  by  this  circumstance 
M'ere  followed  out  without  disclosing  any  title  or  interest  ad- 
verse to  his  grantor,  is  not  that  tliere  is  anything  corrupt  or 
vicious  in  the  acquisition  of  title  to  premises  occupied  by 
another  than  the  grantor.  The  onh'  effect  which  the  occupancy 
of  the  premises  can  have  is  to  excite  inquiry,  with  reference 
to  the  title ;  and  any  failure  on  the  part  of  such  purchaser  to 
make  the  inquiry,  is  regarded  as  an  intentional  avoidance  of  the 
truth  which  would  have  been  disclosed.  His  io-norance  beinsr 
voluntary,  a  purchase  by  him  would  be  as  clearly  fraudulent, 
as  though  he  had  purchased  with  full  knowledge  of  the  adverse 
claim,  and  with  the  express  intention  of  circumventing  the 
party  in  possession.'^ 

'  Farnsworlh  v.  CliiUls,  4  Mass.,  6^7;  Norcross  v.  "Widgery,  3  Mass.,  506; 
Davis  V.  Blunt,  6  Mass.,  487;  Prescott^.  Heard,  10  Mass.,  CO;  Governeur  «. 
Lynch,  2  Paige,  300;  Sailor  v.  Hert.-'.og,  4  Wliart.,  259;  Lightner  v.  Mooney, 
10  Watts,  407;  Knox  v.  Thompson,  1  Littell,  850;  Kerr  ».  Daj^  14  Penn.  St., 
112;  Jaque3  v.  Weeks,  7  Watts,  261 ;  Lewis  v.  Bradtbrd,  10  AVatts,  67;  Bogga 
V.  Varner,  6  Watis  &  Serg.,  469;  Dixon  v.  Doe,  1  Sm.  &  Marsh.,  70;  Wilty  «. 
Hightower,  6  Id.,  ;i45;  Macou  v.  Sheppard,  2  numi)li.,  335;  Taylor  «.  Low- 
enslein,  50  Miss.,  278;  Groff  v.  Ramsey,  19  Minn.,  44  ;  Morrison  v.  .Manih,  4 
Minn,  423;  Dunks  ?>.  Fuller,  32  Mich.,  242 ;  Forest  ?).  Jackson,  56  N.  H., 
357;  Daniels  v.  Davison,  16  Ves.,  249;  Taylor  c.  Stibbert,  2  Ves.,  437. 

U^rimstone®.  Carter,  3  PaigeCHi.,  421,— Opinion  of  the  Cliancellor,p.  426; 
Flagg  V.  Mann,  2  Suiiiu  .  H').  551;  1  Kenl  Coui..  17!),  ISO;  Daniels  e.  Davi. 


NOTIOK    KY    I'OSSKSSlOiS'.  121 

jj  280.  (Iiiiniotei-  of  Po.sserssioii.  —  It  is  not  alwaA^s  a  question 
of  easy  determination,  whether  the  possession  is  sufficiently 
distinct  and  unequivocal  to  give  notice  to  subsequent  parties. 
It  has,  however,  been  held  that  where  one  acre  was  purchased 
in  a  tract  of  twentj'  acres,  and  set  with  willows,  which  the 
purchaser  cut  regularly  every  year,  for  the  purpose  of  carry- 
ing on  his  business  of  basket-making,  that  such  possession  and 
acts  of  ownership  under  a  deed  which  the  purchaser  had  ne^ 
lected  to  record,  was  sufficient  to  give  notice  of  his  title  to  a 
purchaser  at  sheriff's  sale,  of  the  twenty-acre  tract  of  which  his 
oM'ii  acre  originally  formed  a  part.' 

>>  281.  Possession  by  Tenant.  —  As  to  whether  a  purchaser  may 
be  affected  with  notice  of  a  claim  or  title  adverse  to  his  grantor, 
by  possession  when  the  owner  of  such  adverse  title  is  not  in 
actual  occupancy  of  the  premises  in  question,  the  authorities 
in  this  country  seem  to  be  in  conflict.  In  England  the  weight 
of  authority  inclines  upon  the  side  of  restricting  the  operation 
of  such  possession  to  notice  of  the  title  of  the  actual  occu])ant. 
The  possession  of  a  tenant  under  a  lease  is  notice  simply  of 
his  tenancy,  and  not  of  his  landlord's  title.^ 

§  282.  Notice  of  Inteivst  Claimcid  by  0  •cupant.  —  In  Beatie  v. 
Butler,''  it  is  lield  that  possession  by  the  tenant  of  a  mortgagor 
was  not  notice  of  an  ai^reement  between  the  morto^acjor  and 
mortgagee,  that  the  latter  should  not  demand  of  the  former  a 
strict  compliance  with  the  terms  of  his  mortgage  ;  but  the  same 
conclusion  must  have  been  reached  had  the  morto:aocor  himself 
been  in  possession.  The  court  in  deciding  the  case  of  Flagg 
v.  Mann,*  also  inclines  to  follow  the  English  rule  restricting 
possession  in  its  effect  us  notice,  to  the  interest  claimed  by  the 
actual  occupant. 


son,  1(»  Vos.,  249;  Tuylor  v.  Btibbcrt,  2  Vcs.,  Jr.,  440;  Mall  v.  Smith,  14  V^^s., 
420  ;  Crofton  v.  Oriiisljy,  2  Sch.  &  Ldv.,  oiiS. 

'  Kri(l(!r  ?;.  Lufferly,  1  Wliiirt..,  30?,. 

■  Biirnhai-t  c.Groeiishiclds,  )iti  Eng.  L.  &  Eq.,  77 ;  2  Sug.  on  Vend.,  §  762,763. 

^'21  Mo.,  3i;}. 

*2  Suuin.,  557. 


122  NOTICE    TO    PURCHASERS. 

§283.  Notice  of  Interest  of  Occupant's  Creaitors.  —  Where  a 
fraudulent  conveyance  was  made,  and  the  grantor  remained  in 
possession  by  his  tenants,  it  was  held  in  a  contest  between  the 
creditors  of  the  fraudulent  grantor,  and  the  purchasers,  at  an 
execution  sale  of  the  land  as  the  property  of  the  fraudulent 
grantee,  that  such  possession  was  notice  of  the  title  which  still 
remained  in  the  grantor,  subject  to  his  creditors'  claims.^ 

§  284.  Tenant's  Occupancy.  Notice  of  Landlord's  Title.  —  So 
where  tlie  land  was  located  in  a  new  and  heavily  timliered 
country  and  was  left  by  the  equitable  owners  in  cliarge  of  a 
tenant  who  cut  timber  from  the  land,  and  exercised  such  other 
acts  with  respect  to  the  premises  as  left  the  impression  in  the 
neighborhood  that  the  land  belonged  to  the  absent  landk)rd, 
it  was  held  that  this  was  sufficient  notice  to  any  one  sub- 
sequently dealing  with  the  title  to  put  him  upon  inquiry .- 

§  2S5.  Same.  —  It  was  also  held  in  "Wright  v.  "VYood,^  where 
the  plaintiff  claimed  under  a  deed  from  the  heirs  of  the  for- 
mer owner,  and  the  defendant  under  an  iinrecorded  deed  from 
the  ancestor,  that  the  possession  of  one,  either  in  person  or  bj 
his  tenant,  was  notice  of  an  unrecorded  title  ;  but  it  wasalso 
held  that  the  possession  of  a  mere  intruder  was  not  notice  of 
the  title  of  a  stranger. 

§  286.  Consistency  of  Foregoing  Doctrine.  —  There  seems  no 
good  reason  why,  if  it  be  admitted  that  possession  is  notice,  or 
evidence  of  notice,  there  should  be  any  modification  of  the 
rule  that  possession  by  the  tenant  is  the  possession  of  his  land- 
lord. If  the  purchaser  has  followed  up  the  suggestion  which 
the  possession  of  the  premises  by  a  third  party  implies,  he 
will  inquire  of  the  actual  occupant,  with  a  probability  of 
learning  that  he  liolds  as  lessee  of  another.  Inquiry  cannot 
safely  stop  here;  for  the  next  step  suggested  by  the  circum- 
stances M^ould  be  to  inquire  of  the  landlord.  But  should 
the  lessee  refuse  to  disclose  the  name  of  his  lessor,  or  falsely 

'  Hood  V.  Fahnestock,  1  Penn.  St.,  470. 

'' Wickes  V.  Lake,  25  Wis.,  71. 

2  23  Penn.  St.,  120 ;  Frouz  e.  Orton,  75  111.,  100 


NOTICE    BY    POSSESSION.  123 

lay  claim  to  the  fee,  it  can  hardly  be  required  of  the  ])ur- 
chaser  to  look  farther.  Having  inquired  of  the  person  to 
whom  all  the  circumstances  point  as  best  qualified  to  impart 
information  concerning  the  title  of  which  possession  is  the 
sole  emblem,  he  may  safely  rely  upon  the  information  thus 
acquired  as  absolutely  true. 

§  287.  Possession  no  Evidence  of  Title  in  Stranger.  —  Where, 
however,  at  the  time  of  the  purchase  there  is  one  in  possession, 
who  not  only  holds  adversely  to  the  grantor,  but  to  the  equi- 
table owner,  or  grantee  under  an  unrecorded  instrument,  in  a 
subsequent  contest  concerning  the  title,  this  possession  can 
only  be  availed  of  as  notice,  by  such  possessor  and  those  in 
whose  right  he  pretends  to  hold.  It  could  not  be  used  either 
as  notice  or  evidence  of  notice  of  any  title  or  interest  claimed 
by  a  stranger;  for  the  inquiry  which  it  might  be  presumed  to 
excite,  would  not  in  the  natural  course  of  events  develop  such 
stranger's  title.^ 

§288.  Must  be  Actual,  Notoi'ions  and  Continiions.  —  Subject  to 
the  doctrine  that  possession  may  be  held  by  the  owner  of  the 
fee  through  his  tenant  or  lessee,  it  is  held  that  the  possession 
upon  which  the  claimant  relies  as  giving  notice  of  his  rights 
must  heactual,  open  and  notorious,  and,  so  far  as  is  consistent 
with  the  uses  for  which  the  property  is  occupied,  contimious^ 
It  is  not  to  be  understood,  however,  when  the  one  in  posses- 
sion resides  upon  the  land,  that  his  temporary  absence  from 
home  will  aifect  to  any  extent  whatever  the  character  of  his 
possession.  Xor,  upon  the  other  hand  that  his  personal  pres- 
ence thereon  at  stated  intervals,  when  such  presence  is  transi- 
tory, and  entirely  disconnected  with  any  use  of  tlie  land,  would 
be  such  possession  as  would  charge  purchasers  or  incum- 
brancers with  notice  of  his  title.^ 

§289.  Occnpanoy  by  Church  Society.  —  But  wliere  there  had 
been  a  parol  conveyance  to  a  church  society,  of  a  portion  of  a 

'  Wright  v.  Wood,  23  Pc-nn.  St.,  120. 
*  Brown  v.  Volkonning,  (i4  N.  Y.,  76. 
«  Kendall  v.  Luwience,  23  Pick.,  540. 


124:  NOTICE   TO   PURCHASERS. 

tract  of  bind,  which  conveyance  was  followed  by  the  erection 
of  a  building  suitable  for  public  worship,  and  was  so  u.scd  by 
the  society,  this  was  held  as  sufficient  notice  to  a  subsequent 
purchaser  of  the  original  tract,  including  the  church  lot,  that 
the  society  had  an  interest  in  such  property.' 

§  200.  Exchisive.  —  Another  essential  feature  of  the  posses- 
sion which  is  set  up  as  notice  to  a  subsequent  purchaser  is  that 
it  must  be  exclusive,  at  least  so  far  as  such  subsequent  pur- 
chaser's grantor  is  concerned.*  Accordingly,  where  a  father 
conveyed  to  his  son,  upon  certain  conditions,  an  undivided  one- 
tliird  of  a  farm,  which  was  at  the  time  occupied  by  them  as 
tenants  in  common,  and  the  son  removed  from  the  farm  during 
the  lifetime  of  tlie  father,  who  remained  in  sole  possession,  it 
was  held  that  the  possession  of  the  father  would  not  be  notice  to 
parties  to  whom  the  son  subsequently  mortgaged  his  interest, 
unless  notice  could  be  brouglit  home  to  the  mortgagees,  at  the 
time  such  mortgage  was  given,  not  only  of  the  father's  posses- 
sion, but  that  it  was  held  adversely  to  his  co-tenant.^  This  was 
so  held  upon  the  familiar  principle  that  the  possession  of  real 
estate  by  one  of  several  tenants  in  common  will  not  be  con- 
strued as  adverse  to  his  co-tenants,  for  the  reason  that  such 
possession  is  perfectly  consistent  with  the  extent  of  his  own 
interest  in  the  land.  To  render  his  occupancy  adverse  to  those 
who  have  an  undivided  interest  in  the  premises,  there  must  be 
positive  and  overt  acts  connected  with  his  exercise  of  owner, 
ship  such  as  will  manifest  an  unmistakable  intention  on  his 
part  to  exclude  his  co-tenants  from  the  enjoyment  of  the  prop- 
erty; otherwise  his  possession  will  be  regarded  not  only  as  a 
declaration  of  his  own  proprietary  rights,  but  those  of  his  co- 
tenants  as  well.* 

§291.  Unequivocal. — So  the  possession  must  be  unequivocal 
and  easily  distinguished  from  that  of  the  grantor,  or  any  one 


'  Macon  v.  Slieppard,  2  Humpli.,  ;^)35. 
'Kf-ndall?).  Lawrence,  32  Pick.,  540;  Infra. 
'Buckmaster  v.  Needham,  22  Vt.,  617. 
*  Brown  v.  Volkenning,  f»4  N.  Y.,  76. 


NOTICE    BY    POSSESSION.  125 

else.  It  is  not  enough  where  one  has  purchased  adjoining 
woodland,  that  he  repairs  the  fences,  removes  dilapidated 
buildings,  clears  oft*  rubbish,  and  depastures  his  cattle  upon 
the  newly  acquired  land.  These  acts  are  too  disconnected  in 
their  character  to  serve  as  notice  of  title.  It  would  be  improb- 
able that  a  stranger  by  looking  at  the  land  before  purchasing, 
would  gain  such  a  knowledge  of  these  detached  acts  of  owner- 
ship,  as  to  put  him  upon  inquiry  as  to  why  one  who,  so  far  as 
appeared  by  the  record,  was  a  stranger  to  the  title,  should  be 
exercising  this  control  over  the  property.^ 

§  292.  Doubtful  in  Extent.  —  So  where  a  party  had  an  equita- 
ble title  to  one-half  of  a  tract  of  land,  which  was  to  be  divided 
by  a  line  drawn  through  tlie  tract  dividing  it  into  equal  por- 
tions, different  from  the  division  made  by  the  government 
survey,  but  there  was  no  proof  that  such  line  was  ever  run 
between  the  two  portions,  and  there  were  no  monuments  indi- 
cating the  boundaries  between  the  two  portions,  and  no  proof 
of  actual  occupancy  or  cultivation  up  to  such  imaginary  line, 
it  was  held  in  a  contest  between  such  equitable  owner  and  an 
innocent  purchaser  of  the  opposite  half  of  the  tract  as  designated 
by  the  description  in  the  government  survey,  that  possession 
of  the  portion  claimed  by  the  equitable  owner  could  not  ope- 
rate as  notice  of  his  claim  of  title  beyond  the  government 
section  lines.^ 

§293.  Same. —  So,  also,  where  one  bought  by  parol  a  corner 
of  the  tract  of  land  occupied  by  his  grantor,  paid  the  purchase 
price,  went  into  possession,  and  erected  buildings  thereon,  but 
without  making  any  survey  or  setting  up  anj'  monuments  to 
designate  the  boundary  line  between  the  tracts,  and  the  build- 
ings upon  the  portion  reserv^ed  by  the  grantor  had  the  appeai- 
ance  of  forming  a  part  of  one  and  the  same  establishment 
with  those  erected  by  the  purchaser,  it  was  held  that  such  parol 
purchaser,  having  ample  opportunity  to  protect  his  interest  by 
giving  express  notice,  and  failing  to  do  so,  could  not  avail 

1  McMechan  v.  Grifiing,  3  Pi(;k.,  150. 
'Jl.'inrick  o.  Thompson,  0  Ala.,  409. 


126  NOTICE    TO    PUBCHASEKS. 

liiniself  of  sucli  uncertain  and  equivocal  possession,  to  charge 
innocent  purchasers  at  a  sale  under  execution  against  his 
grantor,  with  notice  of  his  equity.^ 

§  294.  Possession  and  Right  Claimed,  Contemporaneous.  —  It  is 
also  essential  that  the  possession  which  is  to  operate  as  notice  of 
title  shall  be  contemporaneous  with  the  existence  of  the  right 
or  title  it  is  relied  upon  to  establish,  and  prior  to  the  subse- 
quent purchase.  Therefore,  it  was  held  in  an  action  of 
ejectment,  that  although  the  defendant  was  in  actual,  open, 
undisputed  and  exclusive  possession  of  the  premises  in  ques- 
tion, holding  under  a  quit  claim  deed  at  the  time  the  same 
was  conveyed  to  plaintiff,  such  possession  was  only  notice  of 
such  title  or  interest  as  he  then  had.  And  it  appearing  that 
the  grantor  under  whom  he  claimed  at  that  time  had  never 
been  seized  of  the  property,  a  deed  of  which  plaintiff  had  no 
notice,  made  to  defendant  after  he  had  quit  the  possession, 
being  unrecorded,  the  previous  possession,  would  not  affect 
the  subsequent  purchaser  with  notice  of  his  after-acquired 
title.- 

§295.  Instance  of  Exception  to  the  Rnle. — Where  A  claimed 
title  to  a  parcel  of  land,  by  successive  conveyances  under  an 
unrecorded  deed,  and  went  into  possession,  and  B,  a  rival 
claimant,  traced  his  title  through  a  prior  deed  which  was  also 
unrecorded  at  the  date  of  the  deed  to  A,  it  was  held  that 
under  a  statute  giving  priority  to  the  deed  first  recorded  after 
the  lapse  of  six  months,  the  grantee  of  B,  who  took  during 
A's  possession,  was  not  thereby  affected  with  notice  of  any 
superior  equity  in  A,  and  upon  being  beforehand  with  him  in 
getting  his  deed  first  filed  for  record,  would  have  both  the  legal 
and  equitable  estates.^ 

§  296.  Effect  of  Abandoning  Possession.  —  In  cases  where  the 
possession  relied  upon  as  notice  to  the  subsequent  purchaser, 


>  Billington  v.  Welsh,  5  Binn.,  129. 

'Rupert  V.  Mark,  15  111.,  540;  New  York  Life  las.  Co.  v.  Cutler,  3  Sanf. 
Ch.,  176. 
"Lightriert).  Moouey,  10  Watts,  407. 


NOTICE    BY    POSSESSION.  127 

or  evideiice  of  such  notice,  was  prior  to  the  acquisition  of  title 
by  him,  and  at  the  date  of  his  deed  had  been  abandoned  or 
surrendered,  it  will  not  have  the  effect  of  imposing  upon  such 
subsequent  party  the  duty  of  making  inquiry  as  to  the  char- 
acter of  such  occupancy.^  In  fact,  if  the  possession  of  real 
estate  may  fairly  be  regarded  as  notice  of  a  claim  of  title,  the 
surrender  of  such  possession,  by  a  parity  of  reason,  should  be 
looked  upon  as  an  abandonment  of  the  claim.  Therefore  the 
mere  circumstance  of  a  former  adverse  possession  by  one  with 
no  apparent  title,  cannot  in  any  event,  have  the  slightest 
weight  in  charging  a  subsequent  purchaser  with  notice  of  any 
equities  in  favor  of  the  possessor.'"^ 

§  297.  Possession  Referred  to  Record  Title.  —  Circumstances 
may  arise  where  one  having  title  to  real  estate,  and  being  in 
possession  under  his  title,  may  nevertheless  be  prevented  from 
relying  upon  such  possession  as  notice  to  subsequent  parties. 
As  for  example  where  in  addition  to  the  title  under  which 
the  proprietor  occupies  the  premises,  and  which  either  rests  in 
parol,  or  is  unrecorded,  the  record  also  shows  a  title  under 
which  he  would  be  entitled  to  possession.  In  such  a  case  his 
possession  will  be  referred  to  his  record  title  in  preference  to 
any  other,  and  the  purchaser  will  not  be  affected  with  notice 
of  any  undisclosed  title  or  interest  which  the  possessor  may 
have.  Thus,  where  a  mortgagee  is  in  possession  under  a  re- 
corded mortgage,  a  purchaser  from  the  mortgagor  will  not  be 
by  such  possession  charged  with  notice  of  an  unrecorded  con- 
veyance of  the  equity  of  redemption  from  the  mortgagor  to 
the  mortgagee,  unless  by  the  terms  of  the  recorded  instru- 
ment the  mortgagor  was  entitled  to  possession  at  the  time  of 
the  last  purchase.'' 

§  298.  Same.  —  This  exception  is  obviously  just  and  reason- 
able. When  a  party^  places  upon  record  an  instrument,  the 
provisions  of  which  are  consistent  with  his  possession  of  the 

1  Ehle  V.  Brown,  31  Wis.,  40."). 

'  Campbell  v.  Brackenridgc,  8  Blfickf.,  471. 

'  Plumer  tj.  Koberlson,  0  Surg.  &  K.,  17'J;  Palmer  v.  Bates,  22  Minn.,  532. 


128  NOTICE    TO    PrRCHASERS, 

premises,  while  the  circimistance  of  his  being  in  possession 
undoubtedly  has  a  tendency  to  excite  inquiry  in  the  minds  of 
those  contemplating  a  purchase,  the  fact  that  he  has  placed  the 
evidence  of  his  right  to  occupy  upon  record,  where  it  is  acces- 
sible to  the  whole  v.orld,  arrests  inquiry  at  that  point,  and 
plainly  informs  the  purchaser  that  he  may  rest  securely  upon 
the  knowledge  already  obtained.^ 

§  299.  Claim  Inconsistent  with  Record  Title. —  So  the  possessor 
may  by  his  own  act,  in  putting  upon  the  record  an  instrument 
inconsistent  with  title  in  himself,  or  by  executing  and  deliver- 
ing such  a  recordable  instrument,  be  estopped  from  relying 
upon  his  possession  as  evidence  to  subsequent  purchasers,  that 
he  claims  title  to  the  premises.^  In  the  case  cited,  defendant 
had  conveyed  the  land  in  question  to  one  in  whom  he  place<l 
confidence,  subject  to  a  secret  trust.  The  deed  of  conveyance 
was  absolute  on  its  face  and  was  duly  recorded.  Relying  upon 
the  record,  plaintiff  ])urchased  the  premises  from  the  apparent 
grantee  for  value,  who  in  making  the  sale  was  guilty  of  a  breach 
of  trust.  But  the  plaintiff  took  without  knowledge  or  notice 
of  the  trust  although  the  defendant  after  making  the  convey- 
ance remained  in  possession  and  openly  exercised  acts  of  own- 
ership over  the  property.^ 

§  300.  Notice  of  Reservation  of  Easement.  —  A  well  recognized 
exce}>tion  to  the  above  doctrine,  is  where  possession  is  relied 
upon  as  notice  or  evidence  of  notice  of  a  parol  reservation  of 
an  easement,  upon  a  conv^eyance  of  the  legal  title  to  the  premi- 
ses, when  such  easement  is  essential  to  the  enjoyment  of  adja- 
cent premises,  the  title  to  which  remains  in  the  grantor  and 
possessor  of  such  easement.  As  where  there  were  two  pieces 
of  land  lying  adjacent  to  each  other,  with  different  owners, 
upon  one  of  which  there  was  a  mill,  and  upon  the  other  a  race 


1  Woods  V.  Farm  ere.  7  Watts,  385. 

'  Scott  V.  Gallagher,  14  Serg.  &  R.,  -333. 

•  See  also,  Newhall  «.  Pierce,  5  Pick.,  450;  New  York  Life  Ins.  Co.  «. 
Oiitler,3  Sanf.  Ch.,  176;  Van  Keuren  v.  Central  R.  R.  Co.  of  New  Jersey.  38 
N.  J.  L.,  165. 


NOTICE    BY    POSSESSION.  129 

which  M'as  appurtenant  to  the  mill.  The  owner  of  the  mill 
property  held  by  a  prior  parol  reservation,  a  right  to  the  use 
of  the  race  on  the  adjacent  property,  and  upon  his  subsequent 
acquisition  of  tlie  legal  title  to  both  tracts,  and  his  conveyance 
by  deed  with  covenants  of  seizin,  without  mention  of  the 
easement,  of  the  tract  upon  which  the  water  privilege  was 
claimed,  it  was  held  that  the  continued  possession  and  use  of 
this  privilege,  both  before  and  after  his  obtaining  title  to  the 
property,  was  sufficient  notice  of  the  original  reservation,  to 
put  his  grantee  upon  inquiry.^  In  delivering  the  opinion  in 
this  case,  Mr.  Chief  Justice  Gibson,  makes  a  distinction  be- 
tween the  facts  and  those  in  the  prior  case  of  Woods  v. 
Farmere.'^  There  it  was  decided  in  substance  that  an  owner 
of  distinct  titles,  who  gives  record  notice  of  one  of  them, 
abandons,  as  to  purchasers,  the  other,  of  which  possession 
would  otherwise  be  implied  notice.  "  That,  however,"  says 
the  learned  judge,  "is  not  this  case;  for  Isaac  Silverthorn  had 
but  one  title  to  the  water-right,  and  held  out  neither  notice 
nor  pretence  of  any  other."  Without  presuming  to  question 
the  justice  of  this  decision  it  is  difficult  to  avoid  the  conclu- 
sion that  it  is  exceptional  to  the  rule  announced  in  Woods  v. 
Farmere,  for  the  reason  that  the  possession  of  the  water-right, 
was  clearly  consistent  with  the  defendant's  ownership  of  the 
fee  as  it  appeared  by  his  recorded  deed.  But  whether  under 
the  circumstances  of  the  case  his  conveyance  to  plaintiff  was 
inconsistent  with  a  continuance  of  such  right,  is  another 
matter. 

§301.  Exception  to  Rule  Requiring  Consistency.  —  Another  ex- 
ception allowed  in  favor  of  the  validity  of  notice  of  title  by 
possession,  of  one  who  has  executed  and  delivered  an  instru- 
ment inconsistent  with  the  title  claimed,  which  was  placed 
upon  record,  was  where  the  deed  from  the  tenant  in  possession, 
merely  gave  his  grantee  instantaneous  seizin,  which  was 
utterly  divested  by  the  contemporaneous  re-conveyance  to  his 

'Randall  v.  Silverthorn,  4  Penn.  St.,  173. 
'  7  Watts,  385,  Ante  g  2'J8. 

9 


130  KOTICE    TU    ]'L'liOIIASEKS. 

grantor  and  two  soiis.^  Here  it  was  held  as  against  an  attach- 
ing creditor  of  the  first  grantee,  that  the  possession  of  the  ten- 
ants was  sufficient  to  put  creditors  on  inquiry,  notwithstanding 
the  deed  of  such  grantee  ^vas  first  recorded,  and  the  attach- 
ment was  levied  and  execution  issued  on  the  judgment  was 
duly  extended  and  recorded  during  the  intermediate  time  be- 
tween the  recording  of  the  two  deeds;  and  there  was  no  visi- 
ble change  of  possession,  the  sons  residing  upon  the  premises 
as  members  of  their  father's  family,  as  they  had  done  before. 
From  tlie  report  of  this  case  it  appears  that  the  arttachment 
was  levied  so  soon  after  the  recording  of  the  deed  to  the 
debtor,  that  it  is  not  probable  that  the  credit  from  M-hich  the 
debt  arose,  was  obtained  upon  the  faith  of  the  record  title. 
The  purpose  of  the  transaction  stands  plainly  revealed  as  a 
circuitous  conveyance  by  the  father  to  the  sons,  of  an  interest 
in  the  land,  and  the  first  grantee  was  emplo^'ed  as  a  mere  con- 
duit for  the  title.  The  facts  of  this  case  may  be  sufficient  to 
reconcile  one  to  an  exception,  to  what  may  itself  be  regarded  as 
an  exception  to  the  doctrine  of  notice  by  registration;  but  were 
the  facts  of  a  case  the  same,  except  that  an  innocent  purchaser 
occupied  the  position  of  the  attaching  creditor  in  this  case, 
the  ti-ansitor}'  nature  of  the  title  vested  in  the  grantee  whose 
deed  was  recorded  would  be  no  protection  to  the  grantor's 
possession. 

§  302.  Possession  to  Be^in  with  Unrecorded  Title,  —  It  has  also 
been  decided  where  possession  by  one's  lessees  or  tenants  was 
i-egarded  as  sufficient,  that  their  tenancy  must  commence  after 
the  acquisition  of  the  title  evidenced  by  such  possession.  In 
other  words,  where  at  the  time  of  the  sale,  the  grantor  was  in 
possession  by  his  tenants,  who  afterwards  attorned  to  the 
grantee,  the  grantor's  deed  being  unrecorded,  this  was  lield 
insufficient  to  charge  even  an  attaching  creditor  of  the  grantor 
with  notice  of  such  um-egistered  conveyance.^ 


'  Webster  t.  Madox.O  Mv.,  2rtC,. 

"  Loughridye  c.  Bovvlund,  o^  3liss.,  540. 


NOTICE    liY    POSSESSION.  131 

§  303.     Possession  as  Lessee  Changed  to  Possession  as  Owner.  — 

So  where  one  who  held  possession  as  lessee,  and  after  the  expi- 
ration of  the  term,  remained  a  tenant  at  sufferance  for  a  short 
time  and  then  purchased  the  fee,  it  was  decided  that  such  pos- 
session would  be  referred  to  the  original  tenancy  under  which 
it  commenced  and  would  not  stand  for  notice  of  the  title  under 
which  she  held  at  the  date  of  the  subsequent  pui'chase.^ 

§  304.  The  Rule  in  Mississippi.  —  Tliese  cases  seem  to  settle  tlie 
law  upon  this  question  for  the  State  of  Mississippi,  upon  a 
theory  peculiar  to  that  jurisdiction.  Drawing  the  inference  of 
notice  of  title  from  the  fact  of  possession  by  the  claimant, 
is  there  regarded  as  resting  with  the  neighborhood,  or  with 
the  subsequent  party  to  the  title,  instead  of  with  the  court  or 
iury.  Elsewhere,  possession  derives  its  force  as  a  circumstance 
tending  to  fix  notice  of  a  prior  equity  or  non-registered  con- 
veyance upon  subsequent  parties,  from  the  fact  that  it  is  suffi- 
cient to  put  them  upon  inquiry  and  for  a  failure  to  inquire 
mala  Jides  is  imputed  to  them.  Here  it  seems  requisite,  not 
only  that  the  subsequent  party  must  have  notice  of  the  posses- 
sion, but  his  mind  must  be  free  from  doubt  as  to  the  character 
of  such  possession  before  he  inquires.  Other  courts  decide 
that  the  notice  inferred  from  possession  shall  be  of  such  title 
as  the  possessor  had  at  the  time  of  the  subsequent  purchase, 
limiting  the  application  of  the  principle  to  cases  where  the 
tenant  in  possession  has  not  estopped  himself  from  relying 
upon  his  possession  as  notice,  by  placing  upon  record  a  title 
inconsistent  with  that  claimed,  or  a  different  title  which  is  per- 
fectly consistent  with  his  possession.  In  the  latter  event,  his 
possession  will  be  referred  to  his  record  title.  These  cases, 
however,  decide  that  possession  by  a  purchaser  after  his  tenn 
expires,  will  be  referred  to  his  original  lease  which  is  not  a 
matter  of  record.  There  seems  to  be  a  difference  of  principle 
upon  which  these  cases  are  decided  from  that  governing  those 
elsewliere  determined,  which  we  will  not  attempt  to  reconcile.'^ 

'  Cliiihorne  v.  Ilolincs.  ol  Miss.,  14G. 

'It  is  decided  in  a  receat  case,  that  a  son  who  occupied  certain  premises, 


182  NOTICK    TO    PL:RCHASEKS. 

§  305.  Creditors  Affected  with  Notice.  —  From  authorities 
already  cited,  as  well  as  upon  general  principles,  it  is  quite  clear 
that  subsequent  purchasers  and  incumbrancers  are  not  the  only 
parties  who  may  be  affected  b}'  this  species  of  implied  notice, 
but  that  it  may  be  invoked  against  creditors  of  the  grantor.^ 

§  306.  Possession  of  Chattels.  —  The  doctrine  that  the  purcha- 
ser of  chattels  from  one  who  has  no  possession  thereof  at  the 
time  of  his  purchase  takes  the  same  with  full  notice  of  all  the 
rights  of  the  one  who  has  them  in  possession,  is  so  well  estab- 
lished as  not  to  require  the  citation  of  autliorities  in  its  support. 
Possession  is  much  more  universally  recognized  as  evidence  of 
ownership  in  case  of  chattels  than  where  the  title  to  real  prop- 
erty is  involved.  The  inference  follows  naturally  from  the 
nature  of  the  property  and  the  manner  of  transferring  the  title 
thereto.  Not  only  is  possession  notice  of  the  interest  of  the 
possessor,  but  from  the  fact  that  the  title  to  movable  things 
is  usually  transmitted  by  manual  delivery  of  the  property,  such 
possession  is  ^r^'m«^  facie  evidence  of  absolute  ownership.^ 

the  title  to  which  was  in  his  father,  in  subordination  to  his  father's  title,  and 
who  continued  such  possession  after  his  father's  death,  would  not  be  permit- 
ted to  rest  upon  such  possession,  either  before  or  after  his  father's  death  as 
notice  to  a  subsequent  purchaser  from  other  heirs  of  a  parol  contract  from 
his  father  to  convey  the  property  to  him.     Stone  v.  Coolv,  79  111.,  434. 

^  Kent  V.  Plumer,  7  Me.,  404 ;  Webster  t.  Madox,  6  Me.,  256 ;  Newhall  v. 
Pierce,  5  Pick.,  450. 

*  AnU. 


NOTIOK    FKOM    TITLE    PAPERS.  133 


lY.  Notice  from  Title  Papers. 


§  307.  General  Stateiuoat  of  the  Doctrine, 

308.  Equivalent  to  Actual  Notice. 

309.  Tieated  as  Constructive  Notice. 

310.  Modifications  of  the  Rule. 

311.  Recitals  in  Original  Patent. 

312.  Illustration. 

313.  Sufficient  if  Recitals  would  Lead  to  Knowledge. 

314.  In  Same  Transaction. 

315.  Should  be  in  Same  Chain  of  Title. 

316.  Recitals  Reasonably  Certain. 

317.  Same. 

318.  Example  of  General  Recital. 

319.  Uncertainty  of  Description. 

320.  Strilving  Peculiarities  of  Recital. 

321.  Recital  in  Will. 

322.  Limitations  upon  Etiect  of  Recitals. 

323.  liftcital  of  a  Trust. 

324.  May  be  by  Variety  of  Instruments. 

325.  Recital  in  Mortgages. 

326.  Books  of  Record. 

327.  Conveyance  by  Statute. 

328.  Facts  which  may  be  thus  Brought  Home  to  Purchaser, 

329.  Contract  to  Convey. 

330.  Vendor's  Lien. 

331.  Who  Affect ed. 

332.  Dilierent  Kinds  of  Projierty. 

333.  Stocks  Transferred  by  Executor. 

334.  Personal  Property. 

335.  Inquiry  Extends  to  Examination  of  Papers. 

336.  Deed  of  Real  Estate  Containing  Bill  of  Chattels. 


§307.  Geneiiil  Sfateinent  of  the  Doctrine.  — The  notice  to  pur- 
chasers, of  interests  in  the  subject  of  the  purchase,  which  is 
derived  from  the  [)apers  by  which  the  title  is  transmitted, 
affected  or  incuml)ered,  is  for  obvious  reasons  confined  ahnost 


134  NOTICE    TO    I'URCHASEKS. 

exclusively  to  real  estate.  It  is  only  in  those  exceptional  in- 
stances where  personal  j)roperty  passes  by  written  conveyances, 
or  the  title  depends  upon  some  instrument  of  writing,  that  it 
will  be  subject  to  the  same  rule.  But  it  is  not  restricted  to 
any  particular  class  of  papers.  It  embraces  all  written  evi- 
dences of  title  known  to  the  law;  and  of  all  kinds  of  notice 
that  jnay  depend  upon  inference  or  presumption,  is  perhaps 
the  most  generally  recognized, 

§  308.  Equivalent  to  Actual  Notice.  —  As  a  matter  of  fact,  a 
purchaser  of  real  estate  may  be  totally  ignorant  of  the  recitals 
in  his  own  deed;  yet  every  recital  of  a  fact  affecting  the  title 
to  the  premises,  contained  in  such  deed,  will  be  presumed  to  be 
known  to  snch  purchaser,  and  he  will  be  affected  with  notice 
thereof  in  the  same  manner  and  to  the  same  extent  as  though 
he  had  actual  knowledge,  though  the  statute  interposes  the 
provision  that  those  only  shall  be  charged  who  have  actual 
notice.^  Therefore  it  may  be  said  that  notice  derived  from  the 
recitals  in  the  deed  to  a  purchaser  is  actual,  though  it  clearly 
rests  upon  a  presumption  of  law.  It  may  be  called  actual 
however,  in  the  same  sense  that  a  written  notice  delivered  to  a 
party  who  never  reads  it  may  be  called  actual  notice. 

§  309.  Treated  as  Constructive  Notice.  — Tlie  recitals  of  one'& 
immediate  deed  being  regarded  as  actual  notice,  it  would  seem 
to  follow  that  where  such  recitals  referred  to  other  instruments, 
they  would  be  sufficient  to  put  the  purchaser  upon  inquiry 
with  respect  to  the  instruments  referred  to,  and  thus  make 
their  recitals  notice  which  might  properly  be  classed  as  actual. 
In  most  of  the  cases,  however,  when  it  is  souo^ht  to  chai'2:e  a 
purchaser  with  notice,  by  the  recitals  contained  in  instruments 
affecting  the  title  other  than  his  own  immediate  deed,  it  is 
characterized  in  the  books  as  constructive  notice.  It  woidd  be 
more  accurately  designated  a.ir,jrresir/nj)t(re  notice} 

§310.  Modifications  of  the  Rule.  —  The  doctrine  eml)odied  in 
the  general  statement,  tliat  a  purcliaser  of  realty  tak^  with 

'White  v.  Foster,  103  Mass.,  375;  George  c.  Kent,  7  Allen  (Miiss.),  16. 
''  Ante  Cb.  I.,  Pt.  I. 


NOTICE    FROM    TITLE    PATERS.  l60 

notice  of  every  adverse  legal  claim  or  outstanding  equity 
disclosed  by  the  recitals  contained  in  any  of  the  papers  under 
or  through  which  he  traces  his  title,  is  of  universal  recogni- 
tion, both  in  this  country  and  Great  Britain,  subject,  however, 
to  such  refinements  and  modifications  as  the  peculiarities  of 
adjudicated  cases  have  from  time  to  time  demanded.^ 

§311.  Recitals  in  Original  Patent.  —  So  where  the  title  is 
derived  from  the  general  government  by  a  patent,  which  con- 
tains recitals,  affecting  the  title  in  the  hands  of  a  purchaser 
however  remote  from  the  original  j)atentee,  such  recitals  will 
affect  the  purchaser  although  he  was  ignorant,  both  of  the 
recitals  and  the  facts  recited,  when  he  acquired  the  title. '^ 

§  312.  Illustration.  —  An  example  of  tliis  rule  and  its  appli- 
cation to  recitals  in  the  original  patent,-  was  where  the  party 
entitled  to  a  patent  devised  the  property  to  his  son  ifi  tail, 
and  in  the  event  of  his  decease  without  issue  to  descend  to 
another  son.  After  the  decease  of  the  devisor,  the  deWsee 
obtained  a  patent  to  the  land,  by  which  it  was  granted  to  him 
in  fee  simple,  reciting  that  the  title  was  derived  under  the 
will  of  the  devisor.  The  land  was  conveyed  by  the  patentee 
in  several  parcels  to  diiferent  grantees  in  fee  and  in  the  deeds 
of  bargain  and  sale  he  recited  the  patent  under  which  he 
held.  After  the  land  had  passed  by  successive  conveyances 
to  a  grantee  for  value,  in  a  contest  between  the  issue  in  tail 
and  such  subsequent  purchaser,  it  was  held,  though  admittedly 
a  hard  case,  that  the  purchasers  were  affected  by  the  recitals 
in  the  patent,  of  the  extent  of  the  estate  devised  in  the  will.^ 

§  313.  Sufficient  if  Recitals  would  Lead  to  Knowledge.  —  It  is 
not  necessary  in  order  to  constitute  notice  by  this  means,  that 

'Ilackwith  «.  Damron,  1  Monr.,  235;  Neale  o.  Ilagthrop,  3  Bland,  551; 
Hagtliorp  V.  Hook,  1  Gill  &  J.,  270;  Baker  v.  Mather,  25  Mich.,  51;  Stid- 
ham  «.  Matthews,  29  Ark.,  650;  Corbitt  «.  Clenny,  52  Ala.,  48<);  Bazemore 
V.  Davis,  55  Ga.,  504. 

^Bonner  v.  Wan;,  10  O.,  405;  Brush  v.  Waro,  15  Pot.,  9:5;  S.  C,  1  M'Lean, 
533;  Recdtr  v.  Barr,  4  O.,  44i;. 

^Burkart  v.  Bnclier,  3  Bin.,  455;  also,  Oliver  e.  Pialt,  3  How.  (U.  S.),  333, 
409. 


136  NOTICE    TO    PURCHASERS. 

the  recitals  in  the  antecedent  dee  J  or  other  instrument  through 
wliich  the  title  is  traced,  shall  contain  a  detailed  and  explicit 
reservation  of  the  right  or  title  claimed,  in  such  terms  as 
would  dispense  with  further  proof.  It  will  be  sufficient  if  the 
party  cannot  make  out  his  title  without  such  instrument, 
which  by  its  recitals  leads  him  to  the  fact  of  which  he  is  to  be 
charired  with  notice.  The  reason  alleged  for  the  rule  is  that 
the  purchaser  is  entitled  to  see  all  the  muniments  of  title,  and 
therefore  must  be  presumed  to  have  seen  them,  and  to  have 
taken  notice  of  all  their  recitals  which  in  any  way  affect  his 
purchase,  as  the  omission  on  his  part  to  take  such  precautions, 
would  amount  to  gross  negligence.^ 

§  314.  In  Same  Transaction. — It  is  decided  liowever,  in  most  ot 
the  early  English  cases  above  cited,  that  notice  to  a  purchaser  by 
his  title  papers  in  one  transaction,  will  not  be  notice  to  him  in 
an  independent  subsequent  transaction,  in  which  the  instru- 
ments containing  the  recitals  are  not  necessary  to  his  title;  but 
that  he  is  charged  constructivel}'  with  notice,  merely  of  that 
which  affects  the  purchase  of  the  property  in  the  chain  of  title 
of  which  the  paper  forms  a  necessary  link.  So  that,  where  one 
is  purchasing  a  particular  piece  of  real  estate,  and  his  title 
deeds  recite  a  charge  upon,  or  equitable  interest  in,  another 
piece,  in  favor  of  a  third  party,  such  recitals  would  not  affect 
him  with  notice  of  such  charge  or  interest,  in  the  event  of 
his  subsequent  purchase  from  the  holder  of  the  legal  title  to 
the  other  property.  He  is  not  presumed  to  carry  the  knowl- 
edge thus  imputed  to  him  in  the  first  transaction,  in  his  mem- 
ory until  the  second  purchase  has  been  effected.'^ 

§315.  Should  be  in  Same  Chain  of  Title. — This  application  of 
the  doctrine  has  also  received  the  ap})robation  of  the  American 
courts,  when  invoked  to  charge  a  purchaser  with  constructive  no- 
tice of  an  antecedent  unrecorded  instrument,  or  equitable  inter- 
est, ill  cases  where  the  recitals  offered  in  evidence  of  notice  were 

'Hamilton  71.  Roy?e,  3  Sch.  .t  I.cf..    :!ir,:   >[,Ttiiis  f,   JolittV,  Amb..  311; 
Taylor  v.  Stibbert,  2  Vcs.,  4:JT. 

^See  Hamilton  v.  Royse,  nupra,  :i;i(l  c  isc.-.  ritrd. 


NOTICE    FROM    TITLE    PAPERS.  137 

contained  in  the  title  papers  to  a  diflei-ent  jMeee  of  property 
from  that  to  which  thej  referred.^  In  the  case  cited,  Judge 
Ro(^ERs,  in  delivering  the  opinion  of  the  court  says  in 
explanation  of  the  reason  for  the  holding:  "The  evidence 
M'ould  lead  to  dangerous  consequences,  for  it  is  impossible  for 
any  one  to  recollect  the  recitals  in  deeds  under  which  he  may 
claim.  Let  this  be  held  to  be  admissible  and  competent  to 
affect  a  subsequent  purchaser  with  notice,  it  would  follow 
that  no  man  can  safely  purcliase  until  a  most  careful  exami- 
nation and  inspection  of  every  deed  to  which  he  may  be  a 
party,  and  under  which  he  claims."' 

^  316.  Recitals  Reasonably  Certain.  —  As  to  the  manner  in 
which  the  fact,  of  which  the  purchaser  is  presumed  to  take 
notice,  should  be  referred  to  in  the  instrument,  nothing  more 
can  be  said  in  a  general  way  than  that  it  should  be  reasonably 
certain  and  specific,  the  recitals  containing  sufficient  infor- 
mation to  put  a  man  of  reasonable  prudence  upon  inquiry, 
leading  to  the  truth.  Mere  vague  allusions  to  something 
which  may  or  may  not  amount  to  an  interest  in  the  property 
will  not  always  sufiice.'^ 

§  317.  Same.  —  The  rule  as  to  certainty,  hoM^ever,  as  deduced 
from  the  authorities,  can  probably  be  exemplified  more  satis- 
factoril}^,  by  illustration  from  cases  where  the  uttermost  limit 
of  uncertainty  has  been  reached. 

§  318.  Example  of  General  Recital.  —  In  Bellas  v.  Lloyd,^  the 
purchase  made  was  by  defendant  from  the  plaintiff  and  wife,  of  a 
lot  upon  which  was  situated  a  church  edifice.  The  deed  of 
conveyance  purported  to  convey  to  defendant  the  property  in 
question,  "  together  with  all  the  rights,  liberties,  privileges, 
hereditaments  and  appurtenances,  in  as  full  and  ample  a 
manner,  and  with  all  the  same  rights  and  conditions,  authori- 
ties and  agreements,  with  which  the  said  H.  B.  (the  plaintift"), 

'  Boggs  V.  Varner,  6  Watts  &  Serg.,  469. 

'//a,47;{ 

'  To. ;  see  also,  Freiicli  v.  Loyal  Co.,  5  Leigh,  627,  and  cases  citeiJ,  660-1. 

*  3  Watts,  401. 


138  KOTICE    TO    I'LKCHASKKS. 

and  E..  liif^  wife,  now  liold  the  said  premises,  as  regards  all  or 
any  assemblies  for  divine  M-(»rship."  This  was  held  sufficient 
to  charge  the  pnrchaser  with  notice  of  every  subsisting  agree- 
ment by  plaintiff'  with  any  religions  body,  for  the  nse  of  the 
chnrch  for  divine  worship. 

§319.  rncortaiiity  of  Description.  —  So  where  the  testator,  in 
the  will  nnder  which  the  pnrchaser  claimed,  devised  to  his  son 
fifty  acres  out  of  the  northwest  cornei-  of  the  tract  cUximed  by 
the  pnrchaser,  unless  it  had  been  selected  elsewh.ere.  and  never 
given  up,  this  was  held  sufficient  to  charge  the  pnrchaser  with 
notice  of  the  claim  of  the  son  to  fifty  acres,  because  any  per- 
son, on  reading  the  will  would  be  led  to  inquire  whether  the 
devisee  had  received  his  fifty  acres,  and  if  so,  whether  he  had 
selected  it  elsewhere  than  in  the  corner  designated.  The  infor- 
mation contained  in  the  will  was  sufficient  to  put  the  purchaser 
upon  inquiry,  because  the  will  ^svas  a  necessaiw  link  in  his 
grantor's  title.^  It  will  be  noticed  here  that  there  were  several 
features  of  uncertainty  involved  in  this  devise.  It  was  only 
to  take  efi:ect  upon  the  particular  portion  of  the  tract  described, 
in  the  event  that  it  had  not  been  permanently  selected  else- 
where. There  was  no  time  specified  for  the  selection,  nor  any 
particular  fifty  acres  designated,  and  yet  as  this  might  have 
been  rendered  sufiiciently  certain  to  protect  a  purchaser  wht:> 
would  take  the  pains  to  inquire,  the  court  held  it  sufficient  to 
impose  the  duty  of  inquiry  upon  purchasers  under  the  will, 
however  remote. 

§  320.  Sti'ikitig  Pponliarities  of  Recital.  —  It  has  also  been 
decided  where  there  was  a  deed  of  release  from  one  of  two 
partners  in  business,  to  himself  and  co-partner,  in  which  the 
consideration  -was  expressed  as  follows:  "One  dollar,  received 
of  C.  S.  ife  C.  M.,  merchants  in  trade  under  the  firm  name  ot 
C.  &  Co.,"  the  land  "to  be  held  in  such  proportion  as  is 
agreed  on  between  them,'"  that  the  striking  singularities  of 
this  instrument — it  being  a  deed  from  the  releasor  to  himselt 
and  anothei',  and  describing  the  releasees  as  partners,  etc. — were 

^  McAteer  c.  McMullen,  2  Penn.  8t.,  32. 


NOTICE    FEOM    TITLE    PAl'EEg.  130 

sufficient  to  put  the  purchaser  upon  inquiry  as  to  whetlier  or 
not  it  was  partnership  property.^ 

§  321.  Recital  in  Will.  —  So  where  the  codicil  of  a  will, 
through  which  the  title  was  traced,  recited  the  fact  that  the 
plantation  and  tract  of  land  near  to  the  premises  of  a  Mr.  H., 
was  the  joint  property  of  the  testator  and  another,  the  notice 
was  held  sufficiently  certain,  though  it  did  not  state  whether 
the  land  joined  that  of  H.  on  the  north,  south,  east  or  west  side."^ 
There  were  peculiar  circumstances  however,  tending  to  render 
this  description  more  certain  than  it  appeared  on  its  face ;  for 
there  was  but  one  piece  of  property  owned  by  the  testator  at 
the  time  of  his  decease,  in  that  township,  or  which  answered 
to  the  description  in  the  codicil  in  any  other  particular. 

§  322.  Limitations  Upon  Effect  of  Recitals.  —  On  the  other 
hand,  the  effect  of  the  recital  as  notice  will  be  coniined  to  the 
fact  recited,  and  such  other  facts  as  it  direct!}^  leads  to.  Thus, 
where  a  second  mortgage  referred  to  a  prior  one  in  which  it 
was  recited  that  "part  of  tlie  premises  above  described  are  sub- 
ject to  a  lease  and  mortgage  to  D.  F.  &  Co.,  and  a  mortgage 
to  S.  F.,  B.  F.,  and  H.  F.,  as  by  reference  to  the  records  will 
more  fully  ap])ear,"  it  was  held  that  this  would  only  amount 
to  notice  of  the  conveyances  described,  and  if  there  were  none 
such,  would  not  be  notice  of  an  unregistered  conveyance  to 
D.  F.  and  wife.^ 

§  323.  Recital  of  a  Trust.  —  It  was  likewise  held  in  a  case 
where  there  was  a  recital  in  a  deed,  made  for  a  consideration 
merely  nominal,  that  it  was  made  in  fulfillment  of  a  trust 
reposed  in  the  grantor  by  the  grantee,  did  not  amount  to 
notice  of  any  other  trust  than  one  in  favor  of  the  grantee.* 

§324.  May  be  by  Variety  of  Insfriiments. — ISTotice  may  be 
brought  home  to  subsequent  purchaser  by  the  recitals  in  a 
great  variety  of  instruments.  As  we  have  seen,  it  may  be  by 
the  contents  of  a  will  where  the  title  to  the  pi'operty  has  been 

'  Sifi;oum;y  v.  Munn,  7  Coun.,  324. 
'Lodge  V.  Simonton,  2  Pcnn.,  430. 
'Bell  c.  Twilight,  22  N.  II.,  500,  521. 
*  KainetJ  Dennlston,  22  Pciin.  St.,  202. 


140  XOTIUE    TO    I'L'liUlIASiaiS. 

passed  to  the  grantor  by  devise.*  So  where  a  testator  devised  a 
farm  to  his  son,  and  gave  to  his  two  daughters  a  legacy  of  one 
thousand  dollars  each,  to  be  paid  by  the  son,  whom  he  made 
residuary  legatee,  the  farm  was  held  in  equity  to  be  charged 
with  the  payment  of  the  legacies,  unless  there  was  something 
in  the  will  to  rebut  the  presumption  that  the  testator  intended 
so  to  charge  the  estate  devised.  And  a  subsequent  purchaser 
from  the  devisee  or  his  grantee,  being  compelled  to  trace  his 
title  through  the  will,  w^as  held  affected  with  notice  of  the 
legacies  and  to  take  the  real  estate  subject  to  the  charge.^ 

§  325.  Recitals  in  3Iortgages.— It  is  well  settled  that  the  rule 
applies  to  recitals  in  mortgages  of  prior  date  to  the  purchase, 
subject  only  to  the  provision  that  such  incumbrances  occur  in 
the  chain  of  title  from  the  original  holder  down  to  the  pur- 
chaser affected  by  the  recital.  So  that,  where  the  title  to  a 
piece  of  land,  was  acquired  at  a  foreclosure  sale  of  a  mortgage, 
made  to  secure  two  notes  of  the  same  date,  neither  of  which 
had  priority  over  the  other,  but  which  were  due  to  different 
payees,  and  the  suit  for  foreclosure  was  brouglit  by  one  of  such 
payees,  without  making  the  other  a  ])arty,  the  recitals  in  tlie 
mortgage  were  held  sufficient  notice  to  the  purchaser  of  tlie 
lien  in  favor  of  the  holdei-  of  the  other  nute.'^ 

§  326.  Boolvs  of  Record.  —  So,  books  and  records  necessary  to 
make  out  the  grantor's  title,  have  been  held  to  affect  with 
notice  by  their  contents,  a  grantee  who  may  be  ignorant  of  the 
facts  therein  recited.  Thus  where  the  purchase  was  made  at  a 
sale  under  an  execution  against  the  original  enterer  of  the 
land,  it  was  held,  as  he  could  only  make  out  his  title  by 
reference  to  the  books  in  the  land  office  which  show  the  original 
entry,  that  lie  was  affected  with  notice  of  an  assignment  entered 
there  prior  to  the  rendition  of  the  judgment  upon  which  the 
execution  was  based."* 


'M"Ateei-  v.  McMuHen,  and  Lodgu  v.  Simonton,  Supra. 
-Harris  v.  Fly,  7  Paig  •,  421. 
^  Burrus  v.  Boulluic,  2  Bush.,  ;«). 
-■  Martin  v.  Xasli.  31  Miss.,  324. 


NOTICE    FROM    TITLE    PAPERS.  141 

§327.  Conveyance  by  Statute. — The  manner  of  transferring 
the  title  of  a  judgment  debtor,  by  execution  sale,  and  the 
deed  made  in  pursuance  thereof  has  been  aptly  denominated 
a  "  conveyance  by  statute."^  Its  constituent  parts  are  said  to 
consist  of  the  judgment,  the  levy,  and  the  sheriff's  deed,  each 
of  which  is  an  essential  requisite  to  a  perfect  conveyance.  Upon 
the  validity  of  each  of  these  constituents  must  the  purchaser 
depend  to  effectuate  a  transfer  of  the  interest  of  the  judgment 
debtor,  and  the  absence  of  either  would  render  the  conveyance 
inoperative  for  the  purpose  of  vesting  such  interest  in  the 
purchaser.  The  record  of  these  facts  is  regarded  as  the  writ- 
ten evidence  of  title,  answering  in  the  place  of  a  voluntary 
deed  of  conveyance,  and  as  such  necessary  to  enable  the  sub- 
sequent puj'chaser  to  make  out  his  title.^  The  record  of  the 
judgment  and  decree  forming  part  of  the  conveyance  under 
which  the  property  was  claimed  in  this  case,  when  looked  into, 
disclosed  that  the  plaintiff"  was  not  a  party  to  the  suit  at  which 
the  former  judgment  was  rendered;  that  he  was  at  that  time 
an  infant  of  tender  years;  that  he  was  the  son  and  heir  of  A. 
N,,  deceased  ;  that  one  H.  caused  himself  to  be  appointed  in 
Tennessee,  administrator  of  the  estate  of  A,  N.,  who  u]>  to  the 
time  of  his  death  resided  in  Georgia  ;  that  H.,  in  his  capacity 
as  such  administrator,  and  also  in  the  character  of  a  creditor 
under  color  of  such  authority  as  was  conferred  by  statute,  insti- 
tuted his  suit  to  subject  the  real  estate  of  the  heir  in  Tennessee, 
to  the  payment  of  the  debts  of  his  ancestor,  prosecuted  his 
suit  to  judgment  and  decree,  and  at  the  sale  became  the  pur- 
chaser of  a  tract  of  six  hundred  and  forty  acres  of  land  for  the 
price  and  sum  of  twenty-five  dollars.  For  the  reason  that  the 
record  of  the  judgment  where  these  facts  were  either  disclosed 
by  recitals  or  direct  reference  to  other  papers,  was  a  necessary 
link  in  the  chain  of  title  to  the  property,  it  was  held  that  a 
purchaser  would  be  affected  with  notice  of  such  facts.^ 

1  Nelson  t,.  Allen,  1  Yerg.  (Tenn.),  360. 
3/6.,  367-8. 


112  KOTIOK    TO    I'UUOIIASERS. 

§  328.   Facts  which   may  be  thus   Biouglit  Home  to  Purchaser. — 

The  facts  wliicli  uiaj  be  brought  to  the  knowledge  of  the  piir- 
c'liaser  in  this  manner  are  not  confined  to  such  as  disclose  an 
outstanding  legal  title  to  the  premises  which  may  have  escaped 
attention  by  reason  of  a  failure  to  comply  with  tlie  registry 
hiws.  So  where  a  prior  deed  under  wliicli  the  purchaser  holds, 
shows  upon  its  face  that  it  is  fraudulent,  he  will  be  charged 
witli  notice  of  such  fraud.^ 

^  3'2d.  Contract  to  Convey.  —  The  rule  also  applies  with  equal 
force  where  the  fact  to  be  brought  home  to  the  purchaser  is  a 
contract  to  convey,  wliich  merely  raises  an  equity  in  favor  of 
the  covenantee,  and  where  .such  tact  is  buried  in  the  contract, 
the  existence  of  which  is  onl}-  made  known  bj  the  title  paper.  As 
where  the  contest  lay  l>etween  two  parties,  one  of  whom  (the 
plaintiff)  had  a  contract  for  a  mortgage  which  was  to  be  a  second 
lien  upon  the  premises,  but  had  been  fraudulent!}'  withheld 
by  the  other  contracting  party,  and  the  defendant  who  had 
taken  a  mortgage  upon  the  same  i>remises.  given  in  viola- 
tion of  the  terms  of  the  contract.  The  deed  to  the  mort- 
gagor recited  that  it  was  made  in  pursuance  of  a  contract  of 
sale  between  the  grantor  and  the  plaintiff  of  which  the  grantee 
had  become  the  assignee  or  purchaser,  and  as  such,  entitled  to 
a  fulfillment  thereof,  by  virtue  of  this  conveyance — giving  the 
date  of  said  contract.  In  makins:  the  assis'nment  of  his  con- 
tract  mentioned  in  the  deed,  plaintiff  and  the  mortgagor  entered 
into  a  written  agreement,  by  which  the  latter  agreed,  as  part 
of  the  consideration  of  such  assignment,  that  he  would  exe- 
cute to  plaintiff  a  mortgage  for  a  stipulated  sum,  which  should 
be  a  lien  prior  to  all  others,  except  the  one  mentioned  therein. 
It  was  not  questioned  that  the  mortgagee,  who  was  made  a 
party  defendant  with  the  mortgagor,  by  the  recitals  in  the  deed 
to  his  grantor  was  affected  with  notice  of  the  contract  of  sale 
therein  referred  to ;  but  this  was  not  enough .  for  of  itself  it 
would  not  disclose  plaintiff's  equity.  It  was,  however,  suffi- 
cient to  charge  the  mortgagee  with  notice  that  the  title  had 

'  Juhnsuu  '(,-.  Thwx-att,  1«  Ala.,  741. 


NOTICE    FROM    TITLE    PAPERS.  143 

passed  through  the  plaintiff's  hands,  by  means  of  such  con- 
tract and  the  assignment  tliereof  to  his  co-defendant,  the  mort- 
gagor. This  rendered  the  assignment  a  necessary  link  in  the 
chain  of  title,  and  although  it  was  purely  equitable  in  its 
nature,  would  be  binding  upon  all  purchasers  with  notice.^ 

§330.  Vemloi-'s  Lien. — The  vendor's  lien  for  the  purchase 
monej',  is  another  equitable  interest  which  will  be  protected  as 
well  by  notice  through  the  paper  evidences  of  title  as  other- 
wise. So  where  the  property  purchased,  had  previously  been 
sold  on  a  credit,  which  fact  appeared  by  the  recitals  in  one  oi* 
more  of  the  deeds,  this  was  held  sulHcient  notice  to  put  the 
purchaser  upon  inquiry  as  to  whether  the  same  had  ever  been 
paid,  and  failing  to  make  such  inquiry  the  land  would  be 
charged  in  his  hands  with  the  original  lien  for  the  purchase 
inone}'."' 

§331.  Who  Afftn-ted.  — The  notice  derived  from  title  papei's 
M'ill  affect  not  only  those  who  may  be  classed  as  subsequent 
purchasers.  It  has  been  held  binding  upon  prior  parties  as 
well.  "Where  a  portion  of  the  real  estate  included  in  a  mort- 
o-affe  has  been  aliened  bv  the  morto-aocor,  bv  deed  of  general 
warranty,  equit}'  will  re(|uire  the  mortgagee  to  proceed  against 
the  property  for  satisfaction  of  his  mortgage  debt,  in  the  inverse 
order  of  its  alienation.  And  when  he  has  released  a  portion 
of  the  premises  from  the  incumbrance,  with  knowledge  or 
notice  of  the  prior  alienation  of  another  portion,  he  will  not 
be  permitted  to  foreclose  against  that  portion  previously  aliened, 
except  upon  condition  that  he  credits  the  debt  with  the  value 
of  the  property  by  him  released.  Such  notice  has  been  im- 
plied from  the  recitals  in  a  release  given  under  such  circum- 
stances, making  mention  of  the  assignment  by  the  releasee  as 
further  security,  of  a  bond  and  mortgage  given  by  the  alienee 
of  the  portion  previously  conveyed.  The  fact  that  an  instru- 
ment executed  l)y  himself,  affecting  the  title  to  the  property, 


'  Acer  «.  Westcott,  1  Lans.,  1!).". 

'•'  liuiion".-,    Ex'r  /;.  IJ.iktwell,  *>   ]}.  Moii.,  G7;  Tliorutou  t).  Knox,   lb.,  74; 
Dcitson  V.  Taylor,  .");;  A[i:-,s.,  OOT. 


144  NOTICE    TO    rURCHASERS. 

Jicknowledged  the  assignment  of  a  secnrit}'  taken  for  the  pur- 
chase price  of  a  portion  of  the  land  inchided  in  his  mortgage, 
was  held  to  be  a  conclusive  presumption  that  he  knew  when 
he  executed  that  instrument,  that  the  property  incumbered  by 
such  security  had  been  aliened  by  the  mortgagor.^ 

§  332.  Different  Kinds  of  Property.  —  It  has  been  stated  else- 
where tliat  this  doctrine  is  most  frequently  applied  to  cases 
involving  the  title  to  real  property.^  This,  however,  is  only 
incidental  to  the  difference  in  the  manner  and  mode  of  trans- 
ferring the  title  to  property  of  a  permanent  nature,  from  that 
employed  to  convey  that  which  is  movable.  There  is  no  dif- 
ference in  principle  between  the  effect  of  recitals  in  papers  bv 
which  the  title  to  real  and  personal  property  is  transmitted, 
when  the  latter  is  conveyed  or  affected  by  written  instruments. 
This  is  generally  either  where  the  title  is  acquired  under  a  will, 
or  a  chattel  mortga^-e  or  trust  deed. 

§  333.  Stocks  Transferred  by  Executor.  —  The  principle  here 
discussed  was  applied  in  an  early  English  case,  where  the 
propertj^  involved  was  certain  stocks,  which  were  assigned  by 
an  executor,  to  a  broker  who  took  the  same  in  satisfaction  of 
a  debt  due  from  such  executor.  Knowledge  of  the  fact  that  the 
stocks  were  received  by  the  executor  from  the  testatrix,  was 
brought  home  to  the  assignee  of  the  stocks,  but  not  that  he 
had  actual  notice  or  knowledge  of  the  contents  of  the  will.  It 
was  nevertheless  held  by  the  Master  of  the  Rolls,  that  as  he 
could  not  make  out  his  title  independent  of  the  will,  he  was 
put  upon  inquiry  as  to  its  contents.  And  had  he  inquired, 
he  would  have  discovered  the  falsity  of  the  representations 
made  to  him  by  the  executor  with  respect  to  his  right  to 
assign  the  stocks.^ 

§  334.  Personal  Property.  —  So  where  personal  property  of 
great  value  was  conveyed  in  trust  to  secure  a  trifling  indebt- 
edness, conditioned  that  the  property  thus  transferred  might 

'  Guion  V.  Knapp,  6  Paige,  35. 

»  Ante  %  307. 

'Hill  V.  Simpson,  7  Ves.,  Jr.,  152. 


NOTICE    FROM    TITLE    PAPERS.  145 

remain  in  the  possession  of  the  grantor  for  an  indefinite  time, 
he  having  the  right  to  use  and  consume  the  same  according  to 
his  own  pleasure,  until  the  happening  of  an  uncertain  event. 
The  property  thus  conveyed  included  debts  due  the  grantor  as 
well  as  chattels  in  possession,  and  according  to  the  construc- 
tion placed  upon  the  terms  of  the  instrument,  the  grantor  was 
allowed  to  collect  these  debts,  without  being  required  to 
account  to  the  trustee  for  the  money  so  collected.  It  was  held 
that  this  deed  bore  upon  its  face  such  unmistakable  evidences 
of  its  fraudulent  character,  that  an}'-  one  reading  it  must  be  pre- 
sumed to  know  that  it  was  a  contrivance  to  hinder  and  defraud 
creditors.  And  that  a  purchaser  whose  title  to  the  property 
was  traced  through  this  deed  was  affected  Math  notice  of  all  of 
its  provisions.^ 

§  335,  Inquiry  Extends  to  Examination  of  Papers.  —  The  rules 
will  apply  to  any  species  of  property,  which  may  be  legally 
transferred  by  written  instruments,  or  where  the  title  depends 
upon  any  writing.  And  it  has  been  held  that  the  inquiries 
which  the  purchaser  is  under  obligation  to  make,  by  reason  of 
his  knowledge  of  the  existence  of  such  writing,  must  not  stop 
short  of  an  inspection  of  the  documents  themselves.^ 

§  336.  Deed  of  Real  Estate  Containing  Bill  of  Chattels.  —  But 
where  a  conveyance  of  real  estate  in  which  was  incorporated  a 
bill  of  sale  of  chattels  had  been  placed  upon  record,  it  was 
held  that  a  purchaser  of  the  real  estate  was  not  thereby 
charged  with  notice  of  a  lien  attempted  to  be  retained  upon 
the  personalty.^ 

'  Johnson  v.  Thweat,  18  Ala.,  741-7. 
"^  Christmas  «.  Mitchell,  8  Ired.  Eq.,  535. 
3  Mueller  v.  Engeln,  12  Bush.  (Ky.),  441. 

10 


14t)  NOTICE    TO    PDRCHA.SERS, 


V.  Lis  Pendens. 


§  337.  Lord  Bacon's  Rule. 

338.  Public  Policy. 

339.  Doctriue  of  Coustructlve  Notice  Applied. 

340.  Views  of  Judge  Story. 

341.  Chauoellor  Kent. 

343.  Rule  of  Equity  Jurisprudence. 

343.  Applied  to  Action  of  Ejectment. 

344.  The  Doctrine  indispensable. 

345.  Lord  Hard  wick. 

346.  Eftect  of  Revivor. 

347.  Consideration  no  Protection  to  Purchaser. 

348.  Commencement  of  tlie  Suit. 

349.  Service  of  Process. 

350.  Harshness  of  the  Rule. 

351.  Property  to  be  Identified. 

352.  Alimony. 

353.  Creditor's  Bill. 

354.  Jurisdiction. 

355.  Holder  of  Legal  Title  must  be  Impleaded. 

350.  Equitable  Interest  between  Defendants  UnaflFected. 
^357.  Suit  Must  be  Continuously  Prosecuted. 

358.  Eftect  of  Dismissal. 

359.  Diligence  in  Prosecution. 

360.  Rule  not  Extended  to  Affect  Others  than  Purchasers. 

361.  Prior  Mortgagee  Unaffected. 
363.  Foreclosure  of  Prior  Mortgage. 

363.  Antecedent  E([uit\-. 

364.  Same. 

365.  Holder  of  Equity  may  Acquire  Legal  Title. 

366.  Holder  of  Contingent  Right. 

367.  Waiver  by  Plaintiff". 

368.  Grantor  Must  be  a  Party  at  Time  of  Purchase. 

369.  Generally  Contine  d  to  Real  Estate. 

370.  Purchaser  of  Securities. 

371.  Same — Illustration. 

372.  Does  not  Atl'ect  Negotiable  Paper. 


LIS    PENDENS.  147 


373.  Peculiar  Kind  of  Propertj-. 

374.  Statutory  Provisions. 

875.  Purchaser  not  Atfected  Personally. 

376.  Statute  of  Limitations  does  not  liun  during  Suit. 

377.  Purchaser  at  Execution  Sale. 


§  337.  Lord  Baron's  Rule.  —  Tlie  rule  by  which  a  purchaser 
of  property,  pendente  lite,  is  bound  by  the  decree  of  the 
court,  is  thus  expressed  by  Lord  Bacon  :  "  No  decree  bind- 
€th  any  that  conieth  in  hona  fide  by  conveyance  from  the 
■defendant,  before  the  bill  is  exliibited,  and  is  made  no  party 
by  bill  or  order ;  but  when  he  comes  in  pendente  lite,  and 
while  the  suit  is  in  full  prosecution,  and  without  doxy  color  of 
allowance  or  privity  of  court,  there  regularly  the  decree  bind- 
eth.  But  if  there  were  any  intermissions  of  suit,  or  the  court 
made  acquainted  with  the  conveyance,  the  court  is  to  give  order 
upon  the  special  matters  according  to  justice.'" 

§  338.  Public  Policy.  —  The  language  of  the  courts  in  describ- 
ing the  operation  of  this  rule  as  constructive  notice  has  not 
escaped  learned  criticism.  Lord  Cranworth,  in  Bellamy  v. 
Sabine,"  regards  it  as  "scarcely  correct  to  speak  of  lis  yendemi 
as  affecting  a  purchaser  through  the  doctrine  of  notice.  *  * 
*  *  It  affects  him  not  because  it  amounts  to  notice,  but 
because  the  law  does  not  allow  litigant  parties  to  give  to  oth- 
ers, pending  the  litigation,  rights  to  the  property  in  dispute  so 
as  to  prejudice  the  opposite  party."  It  has  also  been  held  that, 
as  the  doctrine  operates  in  cases  wliere  there  is  no  po^;sibility 
of  the  purchaser  having  notice  of  the  pendency  of  the  suit, 
therefore  it  rests  upon  considerations  of  public  policy,  and  not 
upon  any  presumption  of  notice.* 

§  339.  Doctrine  of  Constructive  Notice  Applied,  —  It  is  undoubt- 
edly true  tliat  tlie  rule,  M'iiich  at  times  works  harshly,  is  only 
justified  by  the  necessity  there  exists  of  putting  an  end  to  liti- 
gation and  ])reventing  the  defendant  from  evading  the  decree 

'Bacon's  Works,  Vol.  2,  47!>. 

M  De  G.  &.T.,  ",(;«,  -78. 

'Newman  v.  Chapman,  2  Hand.,  !)3. 


148  MOTICE    TO    PURCHASERS. 

by  parting  with  the  property  in  dispute  after  the  suit  is  insti- 
tuted, and  before  it  has  reached  final  judgment  or  decree.  But 
courts  of  equity  would  not  tolerate  a  rule  merely  upon  grounds 
of  necessity,  which  operated  to  divest  the  title  to  property, 
acquired  not  only  in  good  faith,  but  without  any  means  what- 
ever of  gaining  a  knowledge  of  adverse  claims.  It  is  tio  expla- 
nation of  the  principle  upon  which  the  rule  is  founded  to  say 
that  "  the  law  does  not  allow  litigant  parties  to  give  to  others, 
})ending  the  litigation,  rights  to  the  property  in  dispute,  so  as 
to  prejudice  the  opposite  party."  The  rule  does  not  operate 
simply  to  prohibit  litigant  parties  from  transferring  their 
interests.  It  also  prevents  others  from  purchasing  while  the 
title  is  being  litigated.  It  could  hardl}^  be  conceived  that  a 
court  of  equitable  jurisdiction  would  entertain  a  rule  so  harsh 
in  its  operations  were  it  not  for  the  publicity  of  judicial  pro- 
ceedings, by  which  the  purchaser  might  be  enabled  to  gain  a 
knowledge  of  the  manner  in  which  his  vendor's  title  was 
attacked.  It  is  perfectly  safe  to  say  that  if  the  proceedings 
were  conducted  with  such  secrecy  as  to  render  it  utterly  impos- 
sible for  a  purchaser  to  obtain  any  information  of  the  contro- 
versy before  it  was  too  late,  the  doctrine  of  lis  pendens  never 
would  have  been  promulgated.  There  is  then  no  impropriety, 
apparent  from  the  reason  of  the  rule,  in  declaring  that  the 
pendency  of  a  suit  respecting  the  title  to  real  property  is  such 
notice  to  the  world  that  the  property  whicli  is  the  subject  of 
the  litigation  will  be  bound  by  the  decree  in  the  hands  of  a 
purcha&er  actually  ignorant  of  the  litigation.^ 

§  340.  Views  of  Judge  Story.  —  This  view  of  the  question  is 
also  well  supported  by  authority.  Judge  Story  has  said  that 
"every  man  is  presumed  to  be  attentive  to  what  passes  in  the 
courts  of  justice  of  the  state  or  sovereignty  where  he  resides. 
And  therefore  a  purchase  made  of  property  actually  in  litiga- 
tion, ^ewc^eTi^e  lite,  for  a  valuable  consideration,  and  without  any 
express  or  implied  notice  in  point  of  fact,  afifects  the  purchaser 

'  Blanchard  v.  Ware,  43  lu.,  530. 


LIS    PENDENS.  149 

in  the  same  manner  as  if  he  had  such  notice;  and  he  will 
accordingly  be  bound  by  the  judgment  or  decree  in  the  suit."^ 

§  341.  Cliaiicellor  Kent.  —  So,  in  the  leading  American  case  ot 
Murray  v.  Ballon,^  Chancellor  Kent  declares  that  "a  lis 
pendens  duly  prosecuted,  and  not  collusive,  is  notice  to  a  pur- 
chaser, so  as  to  affect  and  bind  his  interest  by  the  decree." 

§  342.  Rule  of  Equity  Jurisprudence.  —  This  doctrine  has  been 
generally  accepted  in  courts  of  equity  in  this  country  and 
Great  Britain,  and  the  rule  as  declared  above,  except  where 
abrogated  or  modified  by  statute,  continues  to  form  a  part  of 
the  equity  jurisprudence  of  both  countries.  It  has  been  held 
that  this  is  purel,y  a  doctrine  of  equity,  recognized  and  enforced 
in  courts  of,  equity  alone,  and  cannot  be  rendered  available  in 
proceedings  at  law."' 

§343.  Applies  to  Action  of  Ejectiueut. — But  it  has  been  repeat- 
edly decided,  that  where  an  action  of  ejectment  is  instituted 
against  the  tenant  in  possession,  one  coming  into  possession  ot 
the  subject  of  litigation,  by  assignment  or  otherwise,  pendente 
lite,  will  be  bound  by  the  judgment,  although  he  be  not  made 
a  party  defendant,  and  may  be  ejected  under  the  judgment 
against  his  assignor.''  Such  assignee  of  the  possession  would 
be  liable  for  mesne  profits,  and  could  not  set  up  title  in  him- 
self in  bar  to  the  action  therefor.^ 

§  344.  Tlie  Doctrine  Indispensable.  —  The  harshness  of  this  rule 
as  applied  to  cases  of  equitable  cognizance,  though  frequently 
acknowledojed  by  learned  chancellors,  has  not  served  to  deter 
them  from  adhering  to  it  as  a  safe  doctrine,  and  one  which 
seemed  indispensable  to  the  enforcement  of  their  decrees.     To 

'  Story's  Eq.  Jur.,  Sec.  405. 

•^  1  .Johns  Ch.,  566;  see  also  Edwards  v.  Banksmith,  35  Ga.,  213;  Harris  v. 
Carter,  3  Stew.  (S.  C),  233 ;  Murray  v.  Finster,  3  Johns.  Ch.,  155 ;  Heatley  v. 
Finster,  Id.,  158;  Green  v.  Slayter,  4  Johns.  Ch.,  38. 

^  King  V.  Bill,  28  Conn.,  593. 

*  Howard  «.  Kennedy,  4  Ala.,  592;  Jackson  v.  Tuttle,9  Cow.,  233;  Joucs 
V.  Chiles,  2  Dana,  25 ;  Smith  v.  Trabue,  1  McLean,  87 ;  Wallen  v.  Huff,  ^ 
Sneed,  82 ;  Hickman  v.  Dale,  7  Yerg.,  149. 

Mackson  «.  Stone,  13  .Johns.,  447;  Bradley  v.  McDaniel,  3  Jones,  128; 
Fog-arty  v.  Sparks,  22  Cal.,  142. 


150  JJOTICK    TO    rUKCHAJsKRS. 

liold  tliat  purcliasei-ri  of  property,  the  title  to  which  was  m  liti- 
gation at  the  time  of  the  transfer,  should  be  unaffected  by  the 
decree  unless  brought  in  as  parties  to  the  suit  after  the  pur- 
chase, would  be  to  place  it  within  the  power  of  a  defendant 
holding  under  a  colorable  title,  to  prolong  the  litigation  indefi- 
nitel}'.  The  case  of  Martin  v.  Stiles^  fairly  illustrates  the 
extent  to  which  the  courts  have  gone  in  supporting  the  prin- 
ciple involved  in  Lord  Bacon's  rule.  There  the  bill  was  filed 
and  process  served  in  the  year  1G40,  and  the  case  abated  by  the 
death  of  one  of  the  parties,  about  eight  years  thereafter;  the 
purchase  was  made  about  three  years  after  the  abatement,  and 
the  case  was  revised  about  eleven  years  subsequent  to  the 
purchase,  and  the  decree  one  year  thereafter;  being  twenty- 
ihree  years  subsequent  to  the  institution  of  the  suit,  fifteen 
years  subsequent  to  the  abatement,  and  twelve  years  after  the 
purchase.  It  was  nevertheless  held  that  the  apparent  laohes 
in  the  prosecution  of  the  suit,  was  excused  by  the  wars  preva- 
lent at  the  time,  and  that  the  purchase  while  the  suit  was  in 
abeyance,  was  made  pendente  lite,  and  that  the  purchaser 
was  consecpiently  bound  by  the  decree. 

§345.  Lord  Hardwicke.  —  In  Garth  v.  Ward,^  Lord  Hard- 
wicke,  in  pronouncing  the  opinion  says:  "  A  decree  dismissing 
a  bill  of  redemption,  would  operate  equally  in  favor  of  the 
mortgagee  against  any  person  to  whom  the  mortgagors  should^ 
during  the  pendency  of  that  suit,  convey,  as  against  himself. 
*  *  *  '^  So  in  the  case  of  a  mortgagor  who  comes 
here  for  redemption,  if,  during  such  suit,  he  should  assign  the 
equity  of  redemption,  and,  in  the  final  hearing  of  the  cause, 
thei-e  should  be  a  decree  against  the  mortgagor,  will  not  the 
assignee  of  the  equity  of  redemption  be  bound  l)y  this  decree f 

§346.  Effect  of  Revivor.  —  So,  also,  where  a  suit  was  insti- 
tuted to  foreclose  a  mortgage  and  during  its  pendency  the 
mortgagor  executed  a  second  mortgage  upon  the  same  premises,. 

>  Cited  in  Bishop  of  Winchester  v.  Paine,  11  Ves.  Ch.,  191;  S.  C.  1  Ch.  Ca., 
150. 
■'  2  Atk.,  1T4-5. 


LIS   PENDENS.  151 

and  died  prior  to  the  decree,  on  reviving  the  suit  against  his 
personal  representatives,  it  was  held  unnecessary  to  make 
parties  of  mortgagees  or  purchasers  who  became  such  after  the 
institution  of  the  suit.^ 

§  347.  Consideration  no  Protection  to  Pnrohaser.  —  Where  the 
doctrine  is  in  force  independent  of  any  statutory  provision,  the 
purchaser  jpendente  lite  will  not  be  protected  because  he  paid 
a  valuable  consideration,  and  purchased  without  actual  notice 
of  the  pendency  of  the  suit;  but  the  subject  of  litigation  will 
be  affected  by  the  decree  to  the  same  extent  as  though  the 
purchase  were  made  Avith  full  knowledge  of  the  pendency  of 
the  action^ 

§348.  Commencement  of  the  Suit.  —  In  determining  whether 
a  purchase  of  property  is  made  during  the  pendency  of  a  suit 
affecting  the  title  thereof,  an  important  matter  for  considera- 
tion is  what  amounts  to  the  eoinmencement  of  a  suit.^  It  is 
necessary  to  decide  this  in  order  to  be  able  to  determine  whether 
at  the  date  of  the  purchase,  there  was  a  lis  pendens  within 
the  meaning  of  the  equitable  rule.  For  the  purpose  of  ascer- 
taining whether  the  suit  is  brought  within  the  period  of 
statutory  limitation  and  perhaps  for  some  other  purposes, 
the  suit  has  been  held  commenced  from  the  date  of  the  issuance 
of  the  original  process,"*  and  as  between  the  parties  to  the 
suit,  or  their  personal  repi-esentatives,  from  the  suing  out  of 

'  Bishop  of  Winchester  t.  Paine,  11  Ves.  Ch.,  194;  Montgomery  ».  Birgc, 
31  Ark.,  491. 

2  Norton  «.  Birge,  35  Conn.,  250;  King  tj.  Bill,  28  id.,  598;  Kay  «.  Roe, 2 
Blackf.,  258;  Green  i;.  White,  7  Blackf.,  242;  Ferrier  v.  Buzick,  6  la., 
258. 

' Sorrel  «.  Carpenter,  2  P.  Wins.,  482;  Worsley  v.  Earl  of  Scarboro,  3 
Atk.,  392;  Walker  v.  Smalhvood,  Amb.,  676,  Lowtlier  b.  Carlton,  2  Atk., 
242;  Self  V.  Maddox,  1  Vern.,459;  Fineb  v.  Newh.ini,  2  7(/.,21(i;  Wicklitfe, 
7).  Breckonridge,  1  Busli.  (Ky.),  427;  Mctealf  v.  Pulvertolt,  2  Yes.  «.V  Beam., 
200. 

*Pindell  ».  Maydwell,  7  \V  Monr.,  314:  Sharp  r.  Maguire,  10  Cal.,  577; 
State  Bank  u.  Cason,  10  Ark.,  479;  State  Bank  t\  Brown,  12  Ark.,  94;  Shaw 
e.  Padley,64Mo,  519. 


152  NOTICE    TO    PUKCHASER3. 

process,  whether  the  same  be  issued  and  served  or  not.^  But 
in  cases  generally,  and  especially  in  those  where  the  question 
as  to  the  validity  of  a  purchase  depends  upon  whether  the 
property  purchased  is  the  subject  of  litigation  at  the  time,  the 
suit  will  not  be  regarded  as  pending  until  the  service  of  original 
process,  whether  the  same  is  served  personally  upon  the  de- 
fendant, or  by  any  method  prescribed  by  statute  as  a  sub- 
stitute for  personal  service.^  And  when  for  the  service  of 
summons,  or  subpoena  in  chancery  there  is  substituted  the 
publication  of  a  notice  as  ordered  by  the  court,  such  publica- 
tion should  1)0  complete,  before  the  suit  could  be  regarded  as 
pending  so  as  to  affect  with  notice  purchasers  without  actual 
notice  or  knowledge  of  the  claim  adverse  to  his  vendor.^ 

§  349.  Service  of  Process.  —  The  strictness  with  which  the 
courts  inqst  upon  service  of  process  as  the  commencement  of 
the  suit,  may  be  illustrated  by  the  case  of  Miller  v.  Kershaw.'* 
This  was  a  chancery  suit,  and  it  was  held  that  the  acceptance 
of  service  of  the  sul)poena,  as  of  a  date  prior  to  that  upon 
which  it  was  actualh*  served,  would  not  make  such  a  lis  pendens 
before  the  day  of  actual  service. 

§  350.  Harshness  of  the  Rule.  —  Although  this  is  peculiarly  a 
doctrine  of  equitable  origin,  it  is  by  no  means  one  which  is  a 
favorite  with  the  courts  exercising  chancery  jurisdiction.  The 
harshness  of  its  operation  when  applied  to  cases  where  the  sub- 

'  McLaren  v.  Thurman,  8  Ark.,  313 ;  Maddox  v.  Humphries,  30  Tex.,  494 ; 
Lyle.  V.  Bradford,  T  Mon.,  111. 

2  Clark  ».  Helms,  1  Root  (Conn.),  486;  Dnnu  v.  Games,  1  McLean,  321; 
Games  ».  Stiles,  14  Pet.,  322;  Clevinger -».  Hill,  4  Bibb,  498;  Chaudron  v. 
Magee,  8  Ala.,  570 ;  Hopkins  v.  McLaren,  4  Cow.,  667 ;  Meux  v.  Anthony, 
11  Ark.,  411;  Downer  v.  Garland,  21  Vt.,  362;  Gates  v.  Bushnell,  9  Conn., 
530;  Goodwin  v.  McGehee,  15  Ala.,  232;  Lyle  v.  Bradford,  7  Mon..  Ill; 
Lytle  V.  Pope,  11  B.  Mon.,  297;  Lee  «.  Averell,  1  Sandf.,  731 ;  Spaldin,;?  w. 
Butts,  6  Conn.,  28 ;  Sid  well  v.  Worthingtou,  8  Dana,  74 ;  Jencks  i\  Phelps, 
4  Conn  ,  149;  Bacon  v.  Gardner,  23  Miss.,  60;  Fowler  v.  Byrd,  Hemst.,  213; 
Metcalf  V.  Smith,  40  Mo.,  572;  Samuels  v.  Sliclton,  48  Mo.,  444;  Bailey  «. 
McGinniss,  57  Mo.,  362. 

'Bennett  v.  Williams,  5  ().,  461;  Clevinger  (;.  Hill,  4  Bibb,  498. 

*  1  Bailey's  Eq.,    479. 


LIS    PENDENS.  153 

ject  of  litio-ation  has  been  purchased  in  good  faith,  without 
actual  notice  of  the  pendency  of  the  suit,  renders  it  necessary  and 
proper  to  confine  it  within  narrow  limits  and  give  the  innocent 
purchaser  the  benefit  of  all  technical  objections  which  may  be 
interposed,  to  the  regularity  of  the  proceeding  by  which  his 
vendor's  title  is  attacked.  The  enforcement  of  the  rule  does 
not  proceed  upon  the  ground  that  the  purchaser  has  been 
guilty  oi  fraud.  It  is  at  most  a  general  notice  of  an  equity, 
and  cannot  afi'ect  any  particular  person  with  a  fraud,  unless 
there  was  a  special  notice  of  the  title  in  dispute,  brought  home 
to  the  person  to  be  charged  with  notice.^ 

vj  351.  Property  to  be  Identified.  —  One  of  the  leading  princi- 
ples upon  which  this  doctrine  is  founded,  is  that  the  specific 
property  must  be  so  pointed  out  by  the  proceedings  as  to  warn 
the  wdiole  world  that  they  meddle  with  it  at  their  peril.  There 
must  therefore  be  something  in  the  pleadings,  or  tlie  published 
notice,  at  the  date  of  the  purchase,  to  direct  the  purchaser's 
attention  to  the  property  as  the  identical  thing  which  is  the 
subject  of  the  litigation.^  The  notice  being  purely  construc- 
tive, is  of  the  facts  contained  in  the  bill  and  nothing  more. 
Therefore  unless  it  contains  averments  calculated  to  affect  the 
title  to  the  property,  the  purchaser  will  be  unafiected.^ 

§  352.  Alimony.  —  So  where  a  petition  for  divorce,  in  general 
terms  prayed  for  alimony,  without  asking  for  an  allowance  out 
of  any  specific  property,  this  was  held  not  to  operate  as  a  lien 
until  the  decree  was  pronounced  fastening  it  npon  a  particular 
property.'' 

§  353.  Creditor's  Bill. —  So  also,  a  creditor's  bill,  to  operate  as 
notice  under  this  doctrine  must  be  so  definite  in  the  descrip- 
tion of  the  property  to  be  charged,  that  any  one  reading  it  can 
learn  thereby  what  property  is  the  subject  of  the  litigation.^ 

'  Mtnd  V.  Lord  On-ery,  .3  Atk.,  235. 
'  Lewis  V.  Mew,  1  Strob.  Eq.,  180. 

=* Griffith  «.  Grriffith,  1  Holl".  Ch.  R,   153;  Stone  v.  Connelly,  1  Mete.  (Ky.). 
652;  Ray  v.  Roe,  2  Blaekf ,  258. 
■•  Hamlin  v.  Hevaos,  7  ().,  161. 
'Miller  v.  Sherry,  2  Wall.,  237. 


154  NOTICE    TO    PUKCHASKKS. 

§  354.  Jnrifsdiftion.  —  In  ordei-  tliat  the  purcliaser  pendente 
lit'  may  be  cliar^ed  with  constructive  notice  of  plaintiff's 
eqnit)-,  bj'  reason  of  the  pendency  of  the  suit,  it  is  necessary 
tliat  the  court  to  which  the  summons  or  subpcena  is  return- 
able, should  have  complete  jurisdiction  of  the  property  in 
dispute.^ 

§  355.  Holder  of  Legal  Title  3IiLst  be  Impleaded.  —  It  is  not  suf- 
ficient that  there  is  a  claim  made  by  the  pleadings  to  the 
property.  To  effect  a  purchaser  who  comes  in  pendente  lite, 
under  the  holder  of  the  legal  title,  with  constructive  notice  ot 
the  equity  claimed  against  it,  the  holder  of  the  legal  title  must 
have  been  impleaded  at  the  time  of  the  purchase.  Should  he  be 
brought  in  subsequent  to  the  purchase,  the  lis  pendens  would 
not  take  effect  by  relation,  so  as  to  charge  the  purchaser  with 
notice,  although  the  property  may  have  been  specially  desig- 
nated in  the  bill.^ 

§  356.  Equitable  Interest  between  Defendants  Unaffected.  —  The 
principle  of  the  rule  does  not  extend  to  the  equitable  interest 
of  one  of  the  defendants  in  an  action,  as  against  his  co-defend- 
ant, although  such  interest  be  apparent  on  the  face  of  the  pro- 
ceedings, where  it  is  not  necessary  for  the  purposes  of  the  suit 
tliat  effect  be  given  to  such  equitable  interest,  and  the  pur- 
chaser from  the  defendant  in  whom  the  legal  title  was  vested 
had  no  notice  of  such  equity.^ 

§  357.  Suit  must  be  Continuously  Prosecuted.  —  A  further 
restriction  upon  the  applicatiou  of  this  doctrine,  is  that,  in 
order  to  render  the  pendency  of  the  suit,  constructive  notice 
to  hona  fide  purchasers,  for  value  and  without  actual  notice, 
the  suit  must  be  continuously  prosecuted  from  its  commence- 
ment to  final  judgment  or  decree.^     And  where  a  proceeding 

'  Carriagton  v.  Brent,  1  McL.,  1G7;  S.  C,  9  Pet,  86. 

'  Carr  «.  Callaghan,  3  Littell,  865;  Macey??.  Fen  wick,  9  Dana,  198. 

'Bellamy  v.  Sabine,  1  De  G.  &  J.,  566. 

"Ferrier  v.  Buzick,  6  la.,  258;  McGregor  v.  McGregor,  21  la.,  441 ;  Xew, 
man  v.  Cliapman,  2  Rand.,  93;  Watson  v.  Wilson,  2  Dana,  406;  Horrington 
■0.  Hen-ington,  27  Mo.,  560;  Carter  r.  Mills,  30  Mo.,  432;  Haydeu  v.  Bucklin, 
9  Paige.  512;  Clevinger,  v.  Hill,  4  Bibb,  498. 


LIS    PENDENS.  155 

was  perpetuated  by  successive  continuances  from  1842  to  IRfiS. 
it  was  justly  held  that  the  lis  2>endens  had  lost  its  force/ 

§358.  Effect  of  Dismissal.  —  In  Ludlow  v,  Kidd,'^  where  the 
suit  had  been  dismissed  and  a  bill  of  review  subsequently  filed, 
it  was  held  that  the  suit  Avas  not  pending  within  the  meaning 
of  the  rule,  between  the  time  of  dismissal  and  the  filing  of 
the  bill  of  review  so  as  to  affect  purchasers  with  notice.  It 
was  held  the  same  where  after  dismissal  a  writ  of  error  upon 
the  judgment  of  dismissal  was  sued  out,  and  the  purchaser 
between  the  dismissal  and  suing  out  the  writ,  was  protected  in 
his  purchase.^ 

^359.  Diligence  in  Prosecution. — To  entitle  a  party  plaintiff 
to  the  enforcement  of  the  principle  of  lis  pendens,  against  a 
hona  fide  purchaser  without  actual  notice  of  the  litigation, 
such  party  will  be  required  to  show  reasonable  diligence  in  the 
prosecution  of  his  suit.  Accordingly,  where  it  appeared  that 
there  had  been  a  failure  on  the  part  of  plaintiff  to  make  proper 
parties,  whereby  the  litigation  was  unreasonably  and  vexa- 
tiously  protracted,  the  -^uxQ)ii?L's,%r  pendente  lite  was  held  not  to 
be  charged  with  constructive  notice  of  the  suit.^ 

§  360.  Rule  not  Extended  to  Affect  others  than  Pnrchasers.  — 
This  doctrine,  being  originally  invoked  by  courts  of  equity, 
rather  as  a  measure  of  necessity,  to  prevent  a  failure  of  jus- 
tice, than  on  account  of  its  consistency  with  abstract  justice, 
and  being  employed  to  restrain  mere  strangers  from  coming 
in  pendente  lite,  by  acquiring  an  interest  in  the  subject  of  lit- 
igation, the  courts  have  uniformly  refused  to  extend  its  ])ro- 
visions  to  others  Mdio  were  not  'purchasers  in  the  strict  sense 
of  the  term.  It  will,  therefore,  not  affect  either  mortgagees, 
whose  securities  are  prior  to  the  suit,  or  the  holders  of  ante- 
cedently acquired  equitable  interests  in  the  property. 

§361.  Prior  Mortgagee  Unaffected. — An  instance  of  an  attempt 

'  Fox  -o.  Reeder,  28  O.  St.,  181. 

"3  O.,  541.  But  the  suit  may  be  regarded  as  ponding  continuously,  not- 
withstanding the  tiling  of  a  supplemental  bill  prior  to  the  decree.  Stod- 
dard v.  Myers,  8  0.,  20:i 

'Eldridge  v.  Walker,  80  111.,  270. 

*,S«pra,  §357. 


156  NOTICE    TO    PUKCHASEKS. 

to  cliarge  a  previous  mortgagee  with  constructive  notice  in  this 
manner,  is  the  case  of  Stuyvesant  v.  Hone.^  This  was  where 
a  second  mortgagee  asked  the  aid  of  a  court  of  equity  to 
enforce  the  familiar  doctrine  requiring  the  mortgagee  of  sev- 
eral tracts  pledged  to  secure  the  same  indebtedness,  to  proceed 
by  foreclosure  against  the  several  tracts  in  the  inverse  order  of 
their  alienation.  The  first  mortgage  covered  several  tracts, 
one  of  which  only  was  covered  by  the  second.  Pending  a  suit 
to  foreclose  the  second  mortgage,  of  which  the  first  mortgagee 
had  no  actual  notice,  a  portion  of  the  property  included  in  the 
first  mortwage,  but  not  in  the  second,  was  released  without 
diminishing  the  indebtedness,  thereby  leaving  the  property  to 
which  the  second  mortgagee  was  forced  to  look  for  his  security, 
so  heavily  incumbered  as  to  materially  impair  the  value  of  the 
junior  mortgage.  The  right  of  the  junior  incumbrancer  to 
tlie  relief  prayed  for,  depending  upon  notice,  the  court  held 
that  the  senior  mortgagee  could  not  be  charged  with  construc- 
tive notice  by  reason  of  tlie  pendency  of  the  suit  for  fore- 
closure.- 

§  362.  Foreclosure  of  Prior  Mortgage.  —  So,  a  purchaser  at  a 
foreclosure  sale,  where  the  mortgage  was  given  prior  to  the 
institution  of  a  suit  brought  against  the  mortgagor  with  respect 
to  the  mortgaged  property,  was  held  not  to  be  a  purchaser  j96'/i- 
dente  lite^  within  the  meaning  of  the  rule,  although  the  decree 
of  foreclosure  and  the  sale  were  both  subsequent  to  the  com- 
mencement of  the  suit. 3 

§  363.  Antecedent  Equity.  —  Where  one  has  an  equitable 
interest  in  the  property  prior  to  the  suit,  and  by  reason  thereof 
should  be  made  a  party  defendant,  neither  he  nor  his  assignee 
will  be  affected  with  notice  of  the  suit,  actual  or  constructive, 
unless  he  be  made  a  party  and  his  interest  will  only  be  afiected 
from  the  time  of  his  being  so  brought  in.* 

§  364.  Same.  —  The  pendency  of  a  suit  involving   the  legal 

'1  Sandf.  Ch.,  419. 

"See,  also.  Stuyves-int  «.  Hall,  3  Barl\  Ch.,  151. 

^Tenwick  v.  Macy,  2  B.   Mon.,  469. 

*  Parks  «.  .Jackson,  11  Wend.,  443. 


LIS    PENDENS.  157 

title  to  the  property,  will  not  affect  the  holder  of  an  antece- 
dently acquired  equity  so  as  to  prevent  his  clothing  himself 
with  the  legal  title.^ 

§  365.  Holder  of  Equity  may  Acquire  Legal  Title.  —  Accord- 
ingly, where,  in  the  case  of  Gibler  v.  Trimble,^  the  legal  title 
to  the  lands  in  dispute  was  in  the  United  States  government, 
and  the  complainants,  by  contract  of  purchase,  entered  into 
with  the  legal  holder  of  certain  military  land  warrants, 
acquired  an  interest  against  such  legal  holder,  in  such  lands, 
by  virtue  of  the  location  of  the  land  warrants ;  but  a  pur- 
chaser had  taken  possession,  paid  the  purchase  money  and 
made  permanent  improvements  upon  the  land;  by  reason  of 
the  contract  of  sale,  the  covenantor  became  bound  to  secure 
to  the  covenantee  the  legal  title,  and  where  a  suit  was  insti- 
tuted against  the  legal  owner  of  the  warrants,  to  compel  their 
assignment  and  the  conveyance  of  the  land  to  those  equitably 
entitled  thereto,  it  was  held  that  this  would  not  operate  as  a 
lis  pendens  to  prevent  the  purchaser  in  possession  from  per- 
fecting his  title  by  procuring  a  patent  from  the  government. 

§366.  Holder  of  Contingent  Right. — When  a  contingent  right 
to  the  property  becomes  vested  by  the  happening  of  the  con- 
tingency, during  the  pendency  of  a  suit  involving  the  title, 
he  upon  whom  the  title  devolves  will  not  be  affected  with 
notice  of  the  suit.  As  where,  in  Murray  v.  Blatchford,^  there 
was  a  conditional  assig^nment  of  a  mortgaue,  and  durino^  the 
pendency  of  a  suit  by  the  assignee  to  foreclose,  the  condition 
was  broken  and  the  mortgage  revested,  the  mortgagee  was 
held  not  to  occupy  the  position  of  a  purchaser  pendente  lite, 
and  hence  was  not  bound  by  the  decree  rendered. 

§  367.  Waiver  by  Plaintiff. — Where  the  sale  by  the  defendant, 
pendente  lite,  is  ratified  by  the  plaintiff  who  prevails  in  the 
suit,  by  taking  judgment  for  Xhe  proceeds  of  such  sale,  or  for 

'  Gibler  v.  Trimble,  14  Ohio,  333 ;  Clarkson  v.  Morgan,  6  B.  Mon.,  441 ; 
Pogarty  u.  Sparks,  22  Cal.,  142;  Irvin  v.  Smith,  17  O.,  226. 
"  Supra. 
'  1  Wend.,  583. 


1;38  KOTIUE    TO    VLTROIIASKKS. 

tlie  value  of  the  property  as  for  conversion,  this  will  be  con- 
strued as  a  waiver  of  his  claim  to  the  thing.^ 

§  368.  Grantor  must  be  a  Party  at  Time  of  Purchase.  —  If  at 
the  time  of  the  sale,  the  person  from  whom  the  purchase  is  made, 
has  not  beeh  luade  a  party,  the  lis  pendens  will  not  affect  the 
])urchaser,  although  his  grantor  may  subsequently  be  brought 
in  by  summons,  or  may  voluntarily  appear;  for  those  pur- 
chasers only  are  charged  with  notice,  who  purchase  from  par- 
ties to  the  suit.^ 

§  369.  Generally  Confined  to  Real  Estate.  —  In  applying  this 
doctrine  the  courts  have  generally  manifested  an  inclination 
to  restrict  its  operation  to  suits  in  which  the  title  to  real 
property  was  litigated.  In  some  of  the  cases  this  restric- 
tion is  expressed,  while  in  others  doubts  seem  to  be  entertained, 
with  a  decided  inclination  to  resolve  tiiem  by  declaring  against 
the  extension  of  this  unfavored  doctrine,  to  sales  of  personal 
chattels.^ 

§370.  Purchaser  of  Se;urities. — In  AYatlington  v.  Howley,* 
however,  a  purchaser  of  securities,  jjendente  lite.,  was  held  to 
be  bound  \y^  the  decree,  to  the  extent  that  he  might  be 
required  to  restore  the  securities  to  the  rightful  owner,  and 
receive  what  he  lia^l  actually  paid  for  them,  regardless  of  what 
they  might  be  vvurth  at  the  time. 

§  371.  Same. — Illustration. — So,  in  Murray  v.  Lylburn,^  which 
was  a  case  involving  the  application  of  the  principles  of  Us 
pendens.,  to  the  assignment  of  a  bond  and  mortgage,  where 
the  securities  were  assigned  by  a  trustee,  pending  a  suit  by 
the  cestui  que  trusts,  by  bill  in  equity  against  such  trustee, 
for  a  breach  of  trust,  and  to  take  the  whole  subject  of  the 
trust  out  of  his  hands,  together  with  all  the  papers  and 
securities  relating  thereto.     It  was  held  by  Chancellor  Kknt, 

'  Smith  ■».  Brown,  !)  Leigh,  293. 
'  French  v.  The  Loyal  Company,  5  licigh,  627. 

'Winstcm  v.  Westt'eldt,  23  Ala..  700;    McLourine  o.  Monroe,  30  Mo.,  463; 
BaldwiQ  V.  Love,  3  J.  J.  Marsh.  4b9. 
*  1  De?au.,  167. 
*2  Johns.  Ch.,  441. 


LIS    PKNl^ENS.  159 

that  the  cestui  que  trusU  could  pursue  the  bond  and'murt- 
gage  in  the  hands  of  the  assignee,  for  the  reason  that  the  pen- 
dency of  the  suit  against  the  trustee  bj  whom  the  assignment 
was  made,  was  notice  to  all  the  world.  The  learned  Chancel- 
lor, in  rendering  the  opinion,  savs:  "  If  "VV.  (tite  trustee),  had 
held  a  number  of  mortgages  and  other  securities,  in  trust, 
when  the  suit  was  commenced,  it  cannot  be  pretended  -that  he 
might  safely  defeat  the  object  of  the  suit,  and  elude  the  jus- 
tice of  the  court  by  selling  these  securities.  If  he  possessed 
cash  as  the  proceeds  of  the  trust  estate,  or  negotiable  paper 
not  due,  or  perhaps  movable  personal  property,  such  as  horses, 
cattle,  grain,  etc.,  I  am  not  prepared  to  say,  the  rule  is  to  be 
carried  so  far  as  to  affect  such  sales." 

§372.  Does  not  Affect  Negotiable  Paper.  —  The  above  declara- 
tion of  this  doctrine  is  sufficiently  indicative  of  the  kind  of 
chattels  which  may  be  affected  by  litigation  with  respect  thereto, 
atfainst  the  legal  owner.  The  cases  are  numerous  in  which  it 
has  been  decided  that  negotiable  instruments,  by  whatever 
form  of  action  it  is  sought  to  subject  them  to  adverse  claims, 
canuot  be  affected  in  the  hands  of  hona  fide  purchasers  who 
acquire  them  before  maturity.^ 

§  373.  Peculiar  Kind  of  Property.  —  In  exceptional  cases  de- 
cided with  reference  to  property  of  a  peculiar  kind,  and  which 
was  necessarily  governed  by  peculiar  laws,  the  doctrine  has 
been  applied,^  but  as  this  species  of  property  no  longer  exists, 
the  principle  governing  such  cases  can  hardly  be  applied  with 
safet}'  to  sales  of  chattels,  the  proprietary  interest  in  which 
does  not  depend  upon  local  statutes. 

§  374.  Statntory  Provisions.  —  In  some  of  the  states  of  the 
Union,  and  in  England,  there  have  been  statutory  provisions 
enacted,  which  materiall}'  simplify  the  operation  of  a  lis  jy&n- 
dens,  for  the  reason  that  in  order  to  affect  a  party  with  con- 
structive  notice  of  the  pendency   of  a  suit,  there   must  be  a 

'  Diiy '«.  Zinmieniian,  OH  Ponii.  St.,.  72;  Goodman  i;.  Simonds,  20  How., 
;M;J;  Minos  a  Wc.sI,  88  (4;i.,  18;  Winston  u.  West feldt,  22  Ala.,  TOO;  Hill  «. 
Kroft,  2!»  Ponn.  St..  18();  Kc^lloi^.u-  i\  Fanclicr,  2:^  Wi^.,  21. 

-  Mucey  c.  Fc-nwick,  U  Dunu,  r.J8;  Sniitii  v.  Brown,  'J  Loigli  29:J. 


U;0  NOTICE    TO    PUR(;nASKK«. 

noitce  of  such  suit  filed  with  the  officer,  whose  duty  it  is  to 
register  conveyances  of  real  estate.  These  statutes  provide  in 
substance  that  from  the  time  of  such  filing  only  shall  the 
])endency  of  the  action  be  constructive  notice  to  a  purchaser 
or  incumbrancer  of  the  property  affected  thereby,  and  hence 
are  regarded  as  substitutes  for  Lord  Bacon's  rule/  but  not  as 
having  the  effect  to  modify  the  rule  that  one  purchasing  with 
actual  notice  of  the  litigation,  will  be  bound  by  the  decree.^ 

§  375.  Purchaser  not  Affected  Personally.  —  This  rule  being 
only  applicable  to  suits  which  are  in  their  nature,  actions  in 
rem,  the  judgment  rendered  will  not  bind  the  purchaser,  per- 
sonally, but  will  only  affect  the  property  or  interest  which  is 
the  subject  of  litigation. 

§  376.  Statnte  of  Limitations  does  not  run  During  Suit.  —  Dur- 
ing the  progress  of  a  suit  involving  the  title  to  real  estate, 
where  the  doctrine  of  lis  i)endens  is  applicable,  the  statute  of 
limitations  will  not  run  in  favor  of  the  purchaser,  so  as  to 
defeat  the  operation  of  the  rule.^ 

§  377.  Purchaser  at  Execution  Sale.  —  Those  who  purchase  at 
an  execution  sale  will  be  affected  in  the  same  manner  as  pur- 
chasers directly  from  the  defendant,  when  the  action  upon 
which  the  execution  is  based  has  been  commenced  subsequent 
to  that  in  which  the  title  to  the  property  is  litigated.'* 


'  Richardson  i).  White,  18  Cal.,  102;  Beasley  v.  Mouiitala  Lake  Water  Co.^ 
13  Id.,  306;  Head  v.  Fordyce,  17  Id.,  149;  Ault  b.  Gassaway,  18  Id.,  205. 

'  Sampson  v.  Ohleyer,  22  Cal.,  200. 

=  Henly  v.  Gore,  4  Dana,  133. 

*  Turner  v.  Babb,  60  Mo.,  342;  Stoddard  ti.  Myers,  8  O.,  203;  Scott  v.  Col, 
man,  5  Monr.,  73 ;  Pindall  v.  Trevor,  30  Ark.,  249. 


ACCEPTANCE  OF  PROPOSALS.  161 


CHAPTER  HI. 

Notice  by  which  Certain    Liabilities  are  Created. 

I.  Notice  op  AccErxANCE  of  Proposals. 
II.  Notice  op  Guaranty. 

III.  Notice  op  Assignment. 

IV.  Notice  to  Carriers  and  other  Bailees. 

I.  Notice  of  Acceptance  of  Proposals. 

§  378.  Continuing  and  Limited  Offers. 

379.  Necessity  of  Notice. 

380.  Time. 

381.  Offer  by  Auctioneer. 

382.  Notice  may  be  Oral  or  Written. 

383.  By  Mail. 

.884.  Continuing  until  Accepted,  Rejected  or  Withdrawn. 
385.  Withdrawal  by  Mail. 

§  378.  Coutimiing  and  Limited  Offers.  —  One  of  the  necessary 
ingredients  of  every  contract,  and  the  one  which  is  first  in 
point  of  time,  is  the  proposal  or  oiFer  made  by  the  one  party 
to  the  other.  And  when  such  offer  is  made  without  express 
limitation  as  to  the  time  of  its  acceptance,  it  will  be  regarded 
as  a  continuing  offer  for  a  reasonable  time,  or  until  accepted  or 
withdrawn.  When  accepted,  it  ceases  to  be  an  offer,  because 
it  has  then  ripened  into  a  contract.  When  withdrawn,  the 
matter  in  negotiation  is  at  an  end.*  When  the  time  for 
acceptance  is  expressly  limited  by  the  proposer,  which  it  is 
always  within  his  power  to. do,  the  pro])osal  falls  to  theground 

'1  Pars,  on  C'ont.,  403,  and  cases  cited;  B.  «fe  M.  L.  Ry.  Co.  v.  Unity,  G3 
Me.,  148. 

11 


102  NOTioic  nv  WHICH  liabilities  created. 

at  the  expiration  of  that  time,  unless  sooner  accepted  or  with- 
drawn.^ 

§  379.  Necessity  of  Notice.  —  It  is  not  sufficient  to  constitute 
a  binding  contract  between  the  parties,  that  one  of  them  makes 
a  proposal,  which  is  communicated  to  the  other,  and  that  other 
secretly  resolves  in  his  own  mind  that  he  will  accept  the  offer 
made;  nor  is  it  even  sufficient  that  he  openly  declares  his 
acceptance,  unless  that  fact  be  communicated  bj  him  to  the 
party  making  the  proposal.  In  other  words,  there  must  be 
notice  of  the  acceptance  from  the  accepter  to  the  proposer."^ 

§380.  Time.  —  The  time  within  which  such  notice  must  l)e 
given,  in  order  to  create  a  liability  against  the  proposer,  will 
largely  depend  njion  tlie  subject  matter  of  the  contract,  and 
tlie  conduct  of  the  parties  to  the  negotiation.  Of  course,  if 
the  offer  be  rejected,  a  subsequent  notice  of  acceptance  would 
be  of  no  avail.  It  has  even  been  laid  down  by  very  high 
authority,  as  the  general  doctrine  upon  this  subject,  that  if  the 
party  to  whoiu  the  offer  is  addressed  "goes  away,  and  returns 
the  next  month,  or  the  next  week,  and  says  he  will  accept  the 
proposition,  he  is  too  late  unless  the  proposer  assents  in  his 
turn.  So  it  would  be,  probably,  if  he  came  the  next  day,  or 
the  next  hour;  or,  ]>erhaps,  if  he  went  awaj  at  all  and  after- 
wards returned."  ^ 

§  381.  Offer  by  Auctioneer.  —  AVhere  goods  are  offered  for 
sale  at  auction,  a  bidder  is  regarded  as  making  an  offer  or 
proposal  to  purchase  at  the  price  mentioned  in  his  bid.  The 
offer  to  be  binding  upon  liim  must  be  accepted  before  he  with- 
draws it,  for  until  accepted  it  is  of  no  force.  When,  however, 
another  bid  is  made,  and  cried  by  the  auctioneer  this  may  be 
regarded  by  tlie  first  bidder  as  an  unequivocal  rejection  of  his 
proposal,  which  cannot  again  become  the  subject  of  acceptance 
unless  the  latter  bid  be  withdrawn  and  the  former  is  renewed.'' 

'  1  Pars,  on  Cont.,  405 
'Bcsnjarain  on  Sales,  t^  :')9  et  8eg, 
■'  1  Pars,  on  Cont.,  404. 
*  Payne  v.  Cave,  :'.  T,  K.,  14S. 


ACCEPTANCE    OF    PKOI'OSALS.  163 

§  382.  Notice  may  be  Oral  or  Written.  —  Unless  the  offer  stip- 
ulates for  notice  of  acceptance  iu" writing,  such  notice  may  be 
given  in  any  manner  in  which  information  may  be  communi- 
cated. It  may  be  given,  either  orally  or  in  writing;  and  when 
by  the  latter  mode  may  be  despatched  b}'  a  jDrivate  messenger, 
by  the  post,  or  may  be  by  telegraph.^ 

§  3S3.  By  Mail.  — When  the  negotiations  are  carried  on  be- 
tween the  parties  by  mail,  unless  otherwise  stipulated  by  the 
proposer,  the  contract  will  be  complete  from  the  date  of  de])osit- 
ing  the  notice  of  acceptance  in  the  post  office;  notwithstanding 
during  the  time  intervening  between  the  posting  of  the  notice, 
and  its  receipt  by  the  one  who  makes  the  offer,  the  latter  may 
have  concluded  to  withdraw  the  proposition.^  As  in  the  case 
cited  a  purchaser  offered  a  certain  price  for  an  estate,  which  the 
vendor  accepted  by  post.  The  letter  announcing  the  vendor's 
acceptance  of  the  proposal  was  received  by  the  party  making 
it,  the  day  after  it  was  sent.  Here  it  was  held  that  the  vendor 
was  bound  by  the  contract  from  the  time  of  posting  his  letter 
of  acceptance,  for  the  reason  tliat  the  notice  intended  to  an- 
nounce to  the  purchaser,  the  concurrence  on  the  part  of  the 
vendor,  liad  gone  beyond  his  recall.^ 

§38i.  Contiiuxiiig  until  Ac<'ei)te(l,  Reji^cted  or  Withdrawn.  —  It 
has  been  held  otherwise  in  this  country  in  several  instances,* 
but  the  M'eight  of  authority  in  the  United  States  as  well  as  in 
England  is  decidedlv  in  favor  of  the  rule  announced  above. 
It  seems  also  to  be  the  only  position  on  the  question  that  is 
tenable,  upon  principles  of  sound  reason.  The  offer  must  be 
regarded  as  continuing  until  accepted,  rejected  or  withdrawn. 
So  long  as  it  continues  it  is  at   the  disjjosal  of  the  party  to 

'  Deshon  «.  Fosdick,  1  Woods,  28(5;  Schouberg  c.  Clieny,  0  Tliouij).  &  C, 
(N.  Y.),  300;  S.  C,  3  Hun.,  077. 

5  Potter  t.  Sanders,  0  Hare.  1. 

^See  also,  Brisban  <r>.  Boyd,  4  Paige,  17;  Avorill  ■».  ITcdge,  12  Conn.,  434  ; 
Mactier  v.  Frith.,  6  Weud.,  103;  Levy  ».  Cohen,  4  Ga.,  1 ;  Ciiilds  v  Nelson, 
7  Dana,  381  ;  Hamilton  «.  Lycoming  Mut.  Ins.  Co.,  5  Penn.  St.,  339;  Dunlop 
v.  Higgins,  1  IL  L.  Cas.,  381 ;  Story  on  Sales,  i^^  129,  130,  and  cases  cited. 

^McCuUoch  0.  Eagle  Ins.  Co.,  i  Pick.,  378;  aillesi)ic  v.  Edmouston,  11 
Humph.,  553 


164  NOTICE    BY    WHICH    LIABILIIIKS    CREATED. 

whom  it  is  made.  AVlien  lie  has  written  and  posted  an  answer 
to  the  proposal,  notifying  the  other  ijart}'  that  he  accepts,  he 
has  done  all  that  lies  in  his  power  to  perfect  the  contract,  and 
render  it  binding  npon  himself,  and  in  doing  so  has  rendered 
it  equally  binding  upon  the  author  of  the  ]>roposal. 

§385.  Withdrawal  by  Mail. —  Frofesser  Parsons,  in  his  very 
able  work  on  contracts,  lays  down  the  rule  that  the  oifer  may 
be  withdrawn  by  the  maker  at  any  moment;  but  he  qualifies 
this  somewhat  by  adding  that  such  offer  is  withdrawn  as  soon 
as  notice  of  such  withdrawal  reaches  the  party  to  whom  it  is 
made,  and  not  before.^  This  would  place  the  proposer  in  a 
position  at  a  disadvantage  compared  to  the  status  of  the  other 
party.  If  the  acceptance  is  completed  by  the  deposit  of  the 
notice  in  the  post  office,  Mdiy  may  not  the  proposition  be  con- 
sidered withdrawn  from  the  date  of  posting  notice  of  such  with- 
drawal, rather  than  from  the  date  of  its  receipt  by  the  party  to 
whom  it  is  addressed?  It  is  true  that  the  notice  of  withdrawal 
might  be  posted,  subsequent  to  the  posting  of  the  acceptance. 
In  such  an  event  there  could  be  no  doubt  that  the  attempt  to 
withdraw  the  proposition  was  made  too  late  to  take  effect." 
Where,  however,  the  notice  of  withdrawal  is  first  posted,  the 
same  reasoning  applied  to  the  notice  of  acceptance  will  apply 
with  equal  force  to  the  notice  intended  to  put  an  end  to  nego- 
tiations by  retracting  the  proposal. 

'  1  Pars,  on  Cont.,  483. 

"Hutcheson  ».  Blakeman,  3  Met.  (Ky.),  80. 


NOTICE   OF   GUAKANTY,  165 


II.  Notice  of  Guaranty. 

§  386.  DiflFerent  Forms  of  Collateral  Liability. 

387.  Division  of  Subject. 

388.  Conflicting  Decisions. 

389.  Earljr  Authorities. 

390.  Guarantor  Entitled  to  Notice  of  AcceiJtance — Absolute  Guaranty. 

391.  Proposal  to  Guaranty. 

393.  Letter  of  Credit  Held  to  be  Projwsal. 

393.  Reason  for  Notice  of  Proposed  Guaranty. 

394.  Absolute  Guaranty,  Notice  not  Required. 

395.  Distinction  Between  Different  Kinds  of  Guaranties. 

396.  Uncertainty  of  Amount. 

397.  General  Indefinite  Letter  of  Credit. 

398.  Definiteness  of  Amount. 

399.  Guaranty  of  Proposed  Credit. 

400.  Absolute  Guaranty  of  Uncertain  Amount. 

401.  Notice  of  Acceptance  held  Unnecessary. 

402.  Continuing  Absolute  Guaranty. 

403.  Principles  Regarded  a.s  Settled. 

404.  Weight  of  Authority. 

405.  Rule  as  to  Indefinite  Letters  of  Credit. 

406.  Time  of  Giving  Notice  of  Acceptance. 

407.  Notice  of  Action  on  Guaranty. 

408.  Change  of  Manner  of  Re-imbursement. 

409.  Report  of  Particular  Transactions,  not  Generally  Required. 

410.  Notice  of  State  of  Accounts  on  Demand. 

411.  Notice  of  Principal's  Failure. 

412.  Conflict  of  Authority. 

413.  Early  Massachusetts  Authorities. 

414.  Demand  and  Notice  held  Necessary. 

415.  Later  Authority — Contra  to  Above. 

416.  Indiana  Authorities. 

417.  Negligence  of  Guaranty. 

418.  Rule  in  Connecticut — Absolute  Guaranty. 
419    Uncertainty  of  Amounts. 

420.  Means  of  Knowledge  williin  Itcacli  of  Guarantor. 

421.  Pennsylvania  DoctriiK-. 

422.  Guaranty  and  Suretysliii). 


166  NOTICE    BY    WHICH    LIABILITIES    CKEATED. 

423.  Deductions  from  Authorities. 

424.  Obligation,  Unlimited  and  Uncertaiix. 

425.  Notice  not  as  of  Dishonor  of  Commercial  Paper. 

426.  Notice  Excused — Reasonable  Time. 

427.  Waiver  of  Notice. 

§386.  Different  Forms  of  Collateral  Liability. — The  doctrine 
of  notice,  as  it  affects  the  liability  of  parties  collaterally  lia- 
ble, except  with  reference  to  indorsors  of  negotiable  paper, 
which  is  treated  elsewhere,^  will  be  here  considered  without 
regard  to  the  manner  in  which  such  liability  is  denominated 
in  the  contract  by  which  it  is  created.  It  may  be  by  an  agree- 
ment in  terms  to  "guarantee"  the  performance  of  the  obliga- 
tion assumed  by  the  party  originally  liable  as  principal,  or  it 
may  be  to  "  secure  "  "^  such  performance;  or  the  form  of  expres- 
sion used  may  be  an  agreement  to  be  "accountable"  or  "respon- 
sible'' for  payment  of  a  sum  of  money  due  or  to  become  due  in 
the  future.^  The  undertaking  may  be  endorsed  upon  the  con- 
tract of  the  principal,^  it  may  be  by  a  separate  writing  exe- 
cuted by  the  guarantor,  reciting  the  obligation  assumed  by  the 
principal,  which  it  is  proposed  to  guarantee,  in  speciiic  terins,^ 
or  the  obligation  may  be  assumed  by  a  letter  of  credit,  gen- 
eral or  special,^  and  the  application  of  the  rule  will  be  the 
same  in  cases  belonging  to  either  class,  where  the  obligations 
assumed  are  the  same  in  substance. 

§387.  Division  of  Subject.  — This  branch  of  the  subject  will 
be  of  three-fold  consideration,  l^'irst,  with  reference  to  notice 
of  the  acceptance  of  the  guaranty;  Second.,  notice  of  the  action 
taken  upon  the  faith  of  the  guaranty;  and.  Third.,  wlien  and 
under  what  circumstances  notice  of  the  principal's  failure  to 
perform,  is  necessary  in  order  to  fix  the  liability  of  the  guar- 
antor. 

'  Post  Ch.  6. 

*True  V.  Harding,  12  Me.,  19.3. 

'Norton  B.Eastman,  4  Me.,  521;  Train  v.  Jones,  11  Vt.,  444. 

*  Taylor  v.  Ross,  3  Yerg.,  330. 

*  Smith  V.  Ide,  3  Vt,  290. 
*Rnssell  v.  Clark,  7  Craudi,  09. 


NOTICE    OF    GUARANTY.  167 

§388.  Conflicting  Decisions. — The  doctrine  tliat  guarantors 
are  entitled  to  notice  of  the  acceptance  of  the  guaranty,  when 
the  obligation  assumed  is  absolute  in  its  terms,  has  been  une- 
quivocally asserted  in  comparatively  few  cases  in  this  country, 
and  is  said  to  be  utterly  repudiated  in  England.'  It  is,  how- 
ever, probably  the  prevailing  rule  in  the  State  of  Massachu- 
setts,^ while  in  iTew  York  it  is  strenuously  denied.^  As 
between  tliese  two  great  states,  from  which  we  receive  so  large 
a  part  of  our  commercial  law,  the  latter  seems  to  have  by  far 
the  largest  following  upon  this  question,  by  the  other  states  of 
the  Union.* 

§  389.  Early  Authorities.  —  The  first  decision  bearing  upon 
this  question  by  high  authority  in  this  country,  was  in  the 
case  of  Russell  v.  Clark,^  where  Chief  Justice  Maksuall. 
expressed  the  opinion  that  the  guarantor  could  not  be  held 
upon  the  collateral  undertaking,  even  in  case  it  amounted  to  a 
contract,  absolute  in  its  terms,  without  notice  of  acceptance. 
This  was  followed  by  the  case  of  Cremer  v.  Higginson,''  in 
which  it  is  laid  down  by  Judge  Story  that  where  cash  advances 
were  made  on  the  strength  of  a  guaranty,  limited  to  a  specific 
amount,  it  was  the  duty  of  the  party  making  the  advances  to 
notify  the  guarantor  of  that  fact,  and  that  reliance  was  placed 
upon  the  guaranty,  to  insure  re-payment,  and  if  such  notice 
was  not  given  in  a  reasonable  time,  the  guarantor  would  be 
discharged, 

§  390.  {guarantor  Entitled  to  Notice  of  Acceptance  —  Absolute 
Guaranty. —  So,  where  the  contract  of  the  principal  was  to  pay 
a  specific  sum  in  three  years,  and  the  contract  of  guaranty  was 

'  Cowen,  J.,  in  Douglass  v.  Howland,  24  Weud.,  35. 

» Allen  V.  Pike,  3  Cush.,  238;  Mussey  ».  Rjiyner,  23  Pick.,  223;  Talbot  v. 
Gay,  18  Pick.,  534. 

•''See  New  York  Cases  cited  Infra, 

*  Cases  citxid  Infra. 

»7Craneh,G!). 

« 1  Mason,  323.  See,  also,  Russell  v.  Perkins,  /(/.,  80S;  Uapelye  v.  Builey, 
3  Conn.,  438;  Clark  v.  llemiuglon,  11  Mel.  (Mass.j,  301;  Babcock  o.  Bryant, 
12  Pick.,  133. 


168  NOTICE    BY    WFriOH    LIABILITIES    CREATED. 

in  the  following  language:  "I  will  willingly  hold  myself 
responsible  to  you  for  the  above  amount  provided  T.  (the  prin- 
cipal) should  fail  to  pay  at  the  end  of  said  term  of  three  years," 
it  was  held  that  the  ofuarantor  was  entitled  to  notice  of  the 
acceptance  and  of  the  advances  made  in  reliance  upon  the 
guaranty,  and  where  such  notice  was  not  given,  the  guarantor 
could  not  be  lield  liable  on  the  contract.^ 

§391.  Proposal  to  Gnarantee. — "Where  the  contract  upon 
which  it  is  sought  to  hold  the  party  liable  amounts  simply  to 
a  proposal  to  guarantee  the  faithful  performance  of  the  prin- 
cipal obligation,  and  depends  upon  the  consent  of  the  other 
party,  to  the  extension  of  tlie  credit  to  the  principal  obligor, 
there  seems  to  be  no  disagreement  between  the  authorities, 
American  or  English,  as  to  the  right  of  the  guarantor  to 
consider  tlie  contract  as  incomplete  until  accepted  by  the 
other  party,  of  which  acceptance  he  is  entitled  to  notice.^  Al- 
though there  may  be  some  conflict  between  them,  as  to  what 
amounts  to  an  al)Solute  guaranty,  and  what  is  simply  an  oifer 
to  guaranty. 

§392.  Letter  of  Credit  Held  to  be  Proposal. — The  following 
is  an  example  of  a  letter  of  credit  which  was  treated  as  a 
mere  proposal  to  enter  into  such  a  collateral  engagement,  for 
the  reason  that  it  was  a  continuing  guaranty;  but  elsewhere 
similar  undertakings  have  been  regarded  as  absolute  contracts: 
"Messrs.  K.  B.  &  Co. — Our  friend,  Mr.  C.  H.,  to  assist  him  in 
business,  may  require  your  aid,  from  time  to  time,  either  by 
acceptance  or  indorsement  of  his  paper,  or  advances  in  cash. 
In  order  to  save  you  from  harm  by  so  doing,  we  do  hereby 
bind  ourselves  severally  and  jointl}'  to  be  responsible  to  you, 
at  any  time,  for  a  sum  not  exceeding  eight  thousand  dollars, 
sliould  the  said  C.  H.  fail  to  do  so."  It  was  accordingly  held 
that  the  part}'  to  whom  it  was  addressed,  in  order  to  bind  the 

'Craft  t).  Isham,  1-3  Couu.,  28;  See  also  Lowe  «.  Beckwith,  U  B.  Men., 
187;  Howe  ».  Nickels,  23  Me.,  175;  Hill  o.  Calviu,  4  How.  (Miss.),  331; 
Beebe  v.  Dudley  3G  N.  H.,  249;  Dunbar  v.  Brown,  4  M'Loan,  1G6;  May- 
field  V.  Wheeler,  37  Tex.,  206. 

'  Norton  «.  Eastman,  4  Me.,  .■>22;  Infra,  :J9:J,  case>  cited,  note  3. 


NOTICE    OF    GUARANTY.  169 

guarantor,  should  Imve  ojiv^en  him  notice  of  the  acceptance  of 
the  guaranty.^ 

§  393.  Reason  for  Notice  of  Proposed  Guaranty.  —  This  doctrine 
is  not  only  supported  by  the  almost  unanimous  concurrence  of 
the  authorities,  wherever  the  question  has  been  raised  in  con- 
nection with  a  case  admitted  to  be  a  mere  proposal  to  guarantee,'^ 
but  It  is  based  upon  the  familiar  principle  governing  all  con- 
tracts, that  an  undertaking,  to  become  binding,  requires  the 
simultaneous  concurrence  of  the  minds  of  both  contracting 
parties;  and  where  there  has  been  an  offer  or  proposal  on  the 
one  side,  it  is  pending  until  accepted  or  rejected,  and  notice 
given  of  such  acceptance,  or  rejection  by  the  one  party,  or  is 
withdrawn  by  the  other.^ 

§394.  Absolute  Guaranty,  Notice  not  Required.  —  Where  the 
distinction  is  observed  between  such  contracts  of  guaranty  as 
are  absolute  and  complete  in  their  terms,  and  such  as  are 
conditional  and  incomplete,  notice  of  the  assent  of  the  party 
who  acts  upon  the  faith  of  the  former  will  not  be  required. 
Thus  an  indorsement  which  recited  that — "For  value  received, 

I  sell,  assign  and  guarantee  the  payment  of  the  within  note 
to  J.  A,  or  bearer,"  was  held  an  absolute  undertaking  that  the 
maker  would  pay  when  due,  or  that  the  guarantor  would  pay, 
and  that  therefore  he  was  not  entitled  to  notice,  as  in  case 
of  a  conditional  promise.* 

§  395.  Distinction  Between  Different  Kinds  of  Guaranties.  —  Ln 
some  of  the  cases  where  the  distinction  is  carefully  observed 
between  dilFerent  kinds  of  guaranties,  the  line  of  demarcation 
is  drawn  between  such  as  are  mere  proposas  to  guarantee  upon 

'DoufTlasv.  Reynolds,  7  Pet.,  113;  Kay  v.  Allen,  9  Peun.  St..  320. 

*  Staflbrd  v.  Low,  IG  .Tobns.,  67 ;  where  the  party  expressed  a  \villina;ness  to 
guaranty  if  required;  Binks  «.Trippet,l  Saund.,;)2;  where  notice  wa.-<  made 
a  condition  of  the  gtuiranty ;  also  Beeicman  v.  Hale,  17.Iohns.,  134;  M'lver 
V.  Richardson,  1  Maule  &  Selw.,  557. 

^  Ante  I.  Acceptance  of  Proposals. 

♦Allen  V.  liiglitniere,  20  .lolins..  3G5;  Biceker  »;.  Hyde,  3  M'Lean,  279; 
Breed  v.  llillhouse,  7  Conn.,  523 :  Foster  v.  Barney,  3  Vt.,  60;  Train  v.  Jones, 

II  Vt.,  444;  Russell  v.  Buck,  Id.,  166;  Penny -y.  Crane  Bros.  Mauuf.  Co.,  80 
II!.,  244. 


170  NOTICE    BY    WHICH    LIABILITIES    CREATED. 

viunditions  tliereiu  expressed,  and  others  where  the  guarantor 
expressly  binds  himself  by  a  declaration  that  he  does  guar- 
antee at  the  time.^  Other  cases  distinguish  between  contracts 
which  are  specific  in  amount  and  definite  as  to  time  or  guar- 
anteeing an  existing  demand,  and  sucli  as  are  for  an  nncertain 
amoniit,  indefinite  as  to  time,  or  collateral  to  a  prospective 
indebtedness.^ 

§  396.  Uncertainty  of  Demaml.  —  The  latter  distinction  is 
clearly  laid  down  in  a  case  where,  after  stating  that  the 
principals  desired  to  draw,  the  letter  of  credit  says:  "  You  will 
please  accept  tiieir  draft  for  $2,000,  and  I  do  hereby  guaranty 
the  punctual  payment  of  it,"  On  the  same  paper  was  a  letter 
addressed  to  the  principals,  authorizing  them  to  use  the 
letter  if  they  desired.  Wliilo  holding  that  this  was  such  a 
letter  of  credit  as  would  fairly  entitle  the  party  collaterally 
liable  thereon,  to  notice  of  acceptance  from  the  party  to  whom 
it  was  addressed,  it  was  admitted  that  where  the  contract  was 
made  guaranteeing  a  specific  existing  demand,  as  a  note 
already  made,  notice  of  acceptance  of  the  guaranty  would  not 
be  necessary.'^ 

§397.  General  Indefinite  Letter  of  Credit. — Another  example 
where  the  contract  was  positive  in  its  terms,  is  the  case  ot 
Lawson  v.  Townes.''  Here  the  letter  of  credit  was  of  the  most 
general  and  indefinite  character,  being  addressed  to  "  whom  it 
may  concern;"  with  no  limitation  either  as  to  amount  or 
time.  It  was  held  that  the  guarantor  could  not  be  held  liable 
to  one  making  advances  or  extending  credit  on  the  faith  of  the 
document,  without  first  giving  notice  of  his  acceptance  and 
intention  to  act  on  its  terms.  The  binding  portion  of  the 
instrument  could  not  be  construed  into  a   mere  conditional 

'  Rankin  v.  Childs,  9  Mo.,  673 ;  Smith  v,  Anthony,  5  Mo.,  504 ;  Davis  Sew- 
ing Mach.  Co.  «.  Jones,  61  Id.,  409;  Douglas  v.  Howland,  24  Wend.,  35. 

•^^ee  C.Dick,  10  Pet.,  483;  Wildes  v.  Savage,  1  Story,  22;  Walker  o. 
Forbes,  25  Ala.,  139. 

"Lee  V.  Dick,  10  Pet.,  482;  citing  with  approval,  14  Johns.,  349 ;  and 
Aliens.  Rightmere,  20  7rf.,365;  see  also  Taylor  ;;.  Ross,  3  Yerg.,  330. 

*2  Ala.,  373;  see  also,  Mussey  v.  Rayner,  22  Pick.,  223. 


NOTICE    OF    GUARANTY.  171 

proposal  to  guarantee;  for  it  expresses  a  present  undertaking 
to  answer  for  the  principal's  default.  So  that  the  only  ground 
upon  which  the  guarantor's  liability  could  have  been  held  sub- 
ject to  the  giving  of  notice  of  acceptance,  was  the  uncertain- 
ties hereinbefore  adverted  to.^ 

§  398.  Deflniteness  of  Amount.  —  A  subsequent  decision  by 
the  same  court,  where  the  question  was  raised,  renders  it  quite 
clear  that  definlteness  is  the  point  upon  which  the  right  of  a 
guarantor  to  notice  would  in  their  estimation  be  made  to 
turn.^  Tiiere  it  was  held  that  where  the  guaranty  is  absolute 
in  its  terras,  and  for  the  payment  of  a  definite,  specific  demand, 
there  is  no  sound  reason  why  notice  of  acceptance  should  be 
required  to  be  given  to  the  guarantor  to  perfect  his  liability. 
And  Judge  Goldthwaite  in  delivering  the  opinion  of  the  court 
declares  that  the  English  cases,  and  the  current  of  American 
authorities  are  in  opposition  to  the  rule  requiring  notice  in 
snch  cases. 

§399.  Guaranty  of  Proposed  Crclit. — Where  the  party  origin- 
ally liable  on  a  contract  for  the  purchase  of  lumber  to  be 
used  in  building  a  boat,  as  principal,  upon  failure  to  obtain 
credit  to  the  amount  of  his  contemplated  purchase,  applied  to 
another  to  assist  him  in  obtaining  such  credit,  and  made  out  a 
bill  of  the  lumber  he  desired  to  purchase,  adding  at  the  foot  a 
request  to  the  lumber  dealer  to  furnish  the  quantity  stated  in 
the  bill,  to  which  was  subjoined  the  guaranty  in  these  words: 

''Thereby  guarantee  the  payment  of  the  above  bill ;"  this  was 
held  to  be  snch  a  contract  as  would  require  the  giving  of  notice 
of  acceptance  before  any  liability  would  accrue  against  the 
guarantor.'^  In  so  holding  the  learned  judge  delivering  tlie 
opinion  dwelt  with  emphasis  upon  the  fact  that  the  obligation 
incurred  was  for  an  uncertain  amount,  and  attached  to  a  trans- 
action to  take  place  in  the  future.  He  distinguished  the  case 
from  those    holdin<r  the  irnarantor  liable  where  notice  of  ac- 


^  Supra.  See  also  Walker  ».  Forbes,  2.-)  AI:i.,  i;j!). 

"  Donley  v.  Camp,  23  Ala.,  Go!). 

"  Rankin  v.  Chilrls,  !)  Mo.,  (JTIJ;  see  also  Smith  i\  Anthony,  5  Mo.,  r)Ot. 


1T2  NOTICE    BY    WHICH    LIABILITIEtJ    CREATED. 

ceptance  was  neither  given  nor  required,  principally  on  this 
ground.  In  a  later  case  bj  the  same  court,  the  alleged  contract 
of  guaranty  was  embodied  in  a  letter  requesting  the  party  to 
whom  it  was  addressed  to  advance  a  sum  therein  specified,  and 
stating  that  unless  the  request  was  acceded  to,  he  would  feel 
obliged  to  assist  the  parties  for  whose  benefit  the  collateral 
undertaking  was  proposed,  to  procure  it  elsewhere.  This  was 
held  to  be  a  mere  proposal  to  guarantee,  which  was  incomplete 
until  notice  of  its  acceptance  was  received.^ 

§  400.  Absolute  Giiarjinty  of  Uncertain  Amount.  —  In  the  fore- 
going cases  decided  by  the  Supreme  Court  of  Missouri,  the 
uncertainty  of  the  amount  is  considered,  and  appears  to  have 
had  no  little  weight  with  the  court ;  but  in  the  latest  case  to  be 
found  where  the  question  has  been  decided  by  this  court  the 
contract  was  held  to  bind  the  guarantor,  notwithstanding 
notice  of  acceptance  was  not  given.^  The  terras  of  the  guar- 
anty were  in  substance  that  for  value  received,  the  party  under- 
took to  guarantee  to  the  plaintiff  the  performance  of  a  contract 
previously  entered  into  between  said  plaintiff  and  one  H. 
After  referring  directly  to  the  contract  between  their  principal 
and  the  plaintiff,  as  containing  an  enumeration  of  the  acts, 
the  faithful  performance  of  which  they  guaranteed,  it  was  fur- 
ther specified  that  they  guaranteed,  "the  payment  by  said  H. 
of  all  indebtedness,  by  account,  note,  endorsement  of  notes  or 
otherwise,  which  nuiy  arise  under  this  contract  *  -^  *  * 
*  *  *  to  the  amount  of  six  hundred  dollars."  Here,  it  is 
true,  the  liabilit}'  was  limited  by  the  amount  expressed  in  the 
writing,  but  the  case  was  decided  upon  the  ground  that,  "  where 
a  party  directly  binds  himself  to  be  responsible  for  the  fulfill- 
ment of  another's  contract  already  made,  no  such  notice  can 
be  necessary." 

§  401.  Notice  of  Acceptance  Held  Unnecessary.  —  The  cases 
already  cited  where  absolute  contracts  of  guaranty  were  held  to 
depend  upon  notice  of  acce[)tance,  merely  because  the  obliga- 

»  Central  Savin  trs  Bk.  v.  Shine,  48  Mo.,  450. 
•Davis  Sewing  Majli.  Co.  v.  Jones,  61  Mo.,  409. 


NOTICE    OF    GUARANTY.  173 

tion  incurred  was  collateral,^  are  reviewed  at  length  and 
criticised  by  Judge  Cowen  in  Douglass  v.  Howland,^  It  is 
there  laid  down  that  where  one  party  agrees  to  account  and 
pay  over  such  suras  as  shall  be  found  to  be  owing  by  him,  and 
a  third  party  guarantees  that  the  party  thus  agreeing  shall  per- 
form his  agreement,  an  action  will  lie  against  such  grantor  in 
case  of  the  principal's  failure  to  pay,  without  notice  from  the 
creditor  of  his  acceptance  of  such  guaranty. 

§  402.  Continuing  Absolute  Guaranty.  —  So,  where  a  bond  was 
delivered,  conditioned  that  it  should  be  void  in  case  the  prin- 
cipal should  pay  all  notes  made  by  him  in  favor  of  the  party 
taking  the  bond,  to  a  certain  amount  therein  mentioned, 
otherwise  to  remain  in  full  force  and  eifect  for  a  term  of  years 
therein  specified,  this  was  held  to  be  a  continuing  guaranty. 
It  was  delivered  by  defendants,  at  the  same  time  it  was  accepted 
by  plaintiff;  was  an  original  collateral  agreement,  absolute  in 
its  terms,  and  definite  both  as  to  time  and  amount,  and  was 
therefore  complete  upon  its  delivery  without  notice  of  its 
acceptance  being  given  to  the  guarantor.^ 

§  403.  Principles  Regarded  as  Settled.  —  Any  attempt  at  recon- 
ciliation of  the  authorities  upon  this  (question  must  prove 
vain.  It  would  be  equally  fruitless  to  undertake  to  deduce 
from  the  authorities  cited  a  uniform  rule,  without  entirely 
discarding  some  of  tJie  opinions  expressed  upon  mature  delib- 
eration, by  judges  distinguished  for  their  learning  and  research. 
Some  features  of  the  question,  however,  may  be  safely  regarded 
as  settled  beyond  question.     It  cannot  be  doubted  that  a  mere 

'  Russel  V.  Clark,  Cremer  v.  Higginson,  Russell  v.  Perkins,  Rapelye  v. 
Bailey,  and  Babcock  v.  Bryant,  Supra. 

2  24  Wend.,  35 ;  Smith  v.  Ide,  3  Vt.,  290 ;  Yancey  v.  Brown,  3  Sneed,  89 ;  New 
Haven  Co.,  Bk.  ■».  Mitchell,  15  Conn.,  206;  True  v.  Harding,  12  Me.,  103; 
see  also  Holbrow  v.  Wilkins,  1  Barn.  &  Cres.,  10;  Wildes  v.  Savage,  1 
Stoiy,  22. 

'Farmers'  &  Mech's  Bk.  v.  Kircheval,  2  Mich.,  504;  Train  v.  Jones,  11  Vt.^ 
444.  So  where  the  guaranty  expressed  a  nominal  consideration,  was  by  its 
terms  to  be  a  continuing  guaranty  until  countermanded,  without  limita- 
tion as  to  time  or  amount,  notice  of  acceptance  was  held  unnecessary, 
March  v.  Putney,  50  N.  H.,  34. 


174  NOTICE    Br    WHICH    LIABIMTIES    CREATED. 

proposal  to  guarantee  creates  no  liability  until  tlie  proposal 
is  accepted.^  It  may  further  be  relied  upon  if  the  contract 
is  entered  into  with  reference  to  an  existing  demand,  and  is 
executed  and  delivered  contemporaneously  with  the  principal 
undertaking,  which  is  for  an  ascertained  amount,  that  the 
guaranty  will  be  complete  and  binding  without  notice  of  ac- 
ceptance.^ 

§  4.04:.  Weight  of  Authority.  —  Where  the  obligation  attaches 
to  future  transactions,  there  is  a  controversy  which  remains 
undetermined  ;  with  the  United  States  Courts,  and  those  of 
one  or  two  of  the  Xew  England  States  on  the  one  side;^  and 
the  courts  of  England.  Xew  York,  and  several  other  states 
of  the  Union  on  the  other.  Where,  however,  the  undertaking 
is  absolute  in  its  terms,  to  pay  unless  the  principal  obligation 
is  fulfilled,  and  there  is  a  limit  both  as  to  time  and  amount, 
the  weight  of  authority  is  decidedly  in  favor  of  holding  the 
guarantor  on  his  contract,  although  no  notice  of  acceptance 
was  given.''  The  same  may  be  said  of  continuing  guaranties 
generally,  which  are  absolute  in  their  terms.^ 

§  405.  Rule  as  to  Indefinite  Letters  of  Credit.  —  Uj)on  the  other 
hand,  where  the  collateral  liability  arises  on  a  letter  of  credit 
generally  or  specially'  addressed,  which  is  indefinite  as  to  the 
amount,  and  the  time  within  which  the  credit,  or  future 
advances  are  to  be  extended,  or  given,  althouo-h  the  lano^uaofe 
of  the  instrument  may  be  technically  consistent  with  the  idea 
of  a  present,  absolute  undertaking,  as  distinguished  from  a 
mere  proposal  to  guaranty,  except  where  it  is  a  continuing 
guaranty,  the  party  executing  such  instrument  should  not  be 
held  liable  thereon,  without  notice,  express  or  implied,  of  the 
acceptance  of  the  guaranty,  unless  there  had  been  a  previous 

'  Ante  U  391.  393. 

"  Ante  %i  394,  390. 

'  In  some  of  the  casc^  cited,  the  fact  tluit  the  transactions  are  in  the  future 
are  considered,  but  only  in  connection  with  other  circumstances  held  to  be 
sufficient  to  entitle  the  guarantor  to  notice. 

*  Ante  Ss  394,  39G,  and  cases  cited. 

M/<<eg402. 


NOTICE    OF    GUARANTY.  175 

understanding  that  tlie  credit  would  be  given  in  case  it  was 
authorized  by  the  guarantor.^ 

§406.  Time  of  Giving  Notice  of  Acceptance.  —  Even  where  the 
notice  is  held  necessary,  the  courts  have  generally  been  quite 
liberal  as  to  the  time  within  which  it  should  be  given.  It  is 
not  always  essential  that  it  should  be  given  prior  to  acting 
upon  the  faith  thereof,  but  may  be  in  a  reasonable  time  there- 
after,^ 

§  407.  Notice  of  Action  on  Guaranty.  —  Next,  as  to  notice  of 
the  action  taken  by  the  party  demanding  the  indemnity,  upon 
the  faith  of  the  guaranty.  It  is  not  the  notice  which  is  some- 
times required,  simjily  that  the  party  to  whom  the  writing  is 
addressed  has  acted  upon  the  faith  of  theguarant}'  by  making 
tlie  solicited  advances  or  extending  the  desired  credit,  which 
comes  up  for  consideration  here.  !Xotice  of  such  advances, 
within  a  reasonable  time,  is  generally  treated  as  e(jui\'alent  to 
antecedent  notice  of  the  acceptance  of  the  guaranty.'*  Where 
the  undertaking;  is  in  the  form  of  a  letter  authori>cino;  future 
advances  in  cash,  or  the  extension  of  credit,  by  endorsement 
of  commercial  paper,  or  otherwise,  and  the  letter  is  intended 
to  cover  successive  transactions,  in  sums  of  various  magnitude, 
as  the  exijjencies  of  the  business  to  be  transacted  mav 
demand,  it  has  been  claimed  that  the  guarantor  was  entitled  to 
notice  of  each  transaction  as  it  occurred.  This  claim,  how- 
ever, except  where  the  terms  of  the  letter  of  credit  specially 
require  it,  cannot  be  maintained.'' 

§  408.  Change  of  Manner  of  Reimbursement.  —  The  nearest 
approach  to  a  holding  that  the  party  acting  upon  the  faith  of 
sucli  a  letter  was  required  to  submit  the  details  of  the  busi- 
ness transacted  to  the  guarantor,  is  found  in  Edmonston  v. 
Drake.'     There  the  parties  extending  the  credit  were  mer- 

'  Or,  as  in  Drumiuond  v.  Prcstmun,  12  Wheat.,  515,  where  the  2:11  aranty 
acknowledged  the  credit  already  received  by  the  principal. 

'Douglass  «.  Reynolds,  7  Pet.,  11:5;  Louisville  Manf.  Co.  «.  Welch,  10 
How.  (U.S.).  401. 

'Bell  V.  Kellor,  1:5  IJ.  Mon.,  :J«I  ;   Adams  ,,.  Jones.  12  Pet.,  207. 

*  Douglass  V.  Iteynolds,  Supra;  Lowe  0.  Bi'ckvviUi,  14  13.  Mon.,  184. 

'5  Pet.,  C24. 


176  NOTICE    BY    WHICH    LIABILITIES    CREATED. 

chants  in  Havana,  who'  liowever,  were  not  the  ones  to  whom 
tlie  letter  was  specially  addressed.  Notice  of  the  first  trans- 
action, which  was  a  purchase  of  the  produce  of  the  island, 
pursuant  to  the  order  of  the  party  in  whose  favor  the  letter 
was  written,  was  duly  sent  to  the  guarantor,  specifying  the 
manner  in  which  payment  was  to  be  made — by  bills  on  New 
York.  This  was  promptly  approved  by  the  guarantor,  in  lan- 
guage which  would  clearly  imply  his  satisfaction  at  the  course 
pursued  by  the  Plavana  correspondents,  and  would  place  them 
upon  precisely  the  same  footing  with  respect  to  the  letter  of 
credit,  as  though  it  had  been  originally  addressed  to  them. 
The  letter  itself  did  not  specify  any  particular  manner  in 
which  payment  was  to  be  made  to  reimburse  the  merchants 
extending  the  accommodation,  but  upon  further  advances 
being  made  by  them,  within  the  limits  of  the  credit  author- 
ized, to  be  paid  for  by  bills  drawn  upon  London,  which  change 
was  approved  by  the  party  in  whose  favor  the  credit  w&,s 
given,  it  was  held  tliat  as  this  alteration  in  the  manner  of 
reimbursement  was  not  submitted  to,  and  approved  by  the 
guarantor,  he  did  not  incur  any  liability  thereby.  Mr.  Chief 
Justice  Marshall,  in  rendering  the  decision,^  regards  the 
notice  of  acceptance  of  the  guaranty,  as  a  part  of  the  contract 
between  the  parties,  and  the  fact  that  the  change  was  made  in 
the  interest,  and  with  the  consent  of  their  customer,  as  of  no 
consequence;  as  neither  of  them  had  a  right  to  vary  a  con- 
tract for  their  own  advantage  at  the  hazard  of  the  guarantor. 
§  409.  Report  of  Particular  Transactions  not  Generally  Required. 
—  If  the  liability  of  the  guarantor  in  this  case  is  referred  to 
the  correspondence  between  the  parties,  commencing  with  the 
notice  to  the  guarantor,  the  justice  of  this  decision  may  well 
rest  upon  the  ground  that  the  approval  of  the  substitution  of 
parties  who  were  to  act  upon  the  letter,  being  in  response  to 
the  notice,  might  be  supposed  to  adopt  the  contents  of  the 
notice,  including  the  manner  and  place  of  payment,  as  condi- 
tions upon  which   such  change  was  approved.     But  had  the 

>  5  Pet.,  638 


NOTICE    OF    GUAKANTY.  ITT 

advances  been  made  by  one  to  whom  the  letter  was  originally 
addressed,  there  being  no  conditions  attached  to  the  guaranty, 
wliereby  the  guarantor  was  to  exercise  a  continual  supervision 
of  successive  transactions,  the  manner  aiid  place  of  payment, 
as  well  as  other  matters  of  detail,  might  have  been  arranged 
between  the  parties  immediately  interested,  without  notice  to, 
or  consent  of,  the  party  collaterally  liable.^ 

§  410.  Notice  of  State  of  Accoinits  on  Demaiul.  —  Although 
the  ultimate  liability  of  a  guarantor,  in  case  of  a  continuing 
guaranty,  may  not  depend  upon  his  receiving  notice  of  each 
successive  transaction  had  upon  the  faith  of  such  guaranty,  it 
is  doubtless  true  that  upon  demand  made  by  him  therefor,  he 
would  be  entitled  to  information  concerning  the  state  of  the 
accounts  between  the  party  extending  the  credit  and  the  one 
originally  liable  as  principal.  His  interest  in  having  such 
knowledge  or  information  could  not  be  questioned.  Such  con- 
tracts are  not  generally  made  in  anticipation  of  default  by  the 
principal,  and  are  frequently  based  upon  a  private  understand- 
ing between  the  guarantor  and  the  party  for  whose  benefit  the 
guaranty  is  made.  The  information  obtained  by  the  guaran- 
tor, upon  inquiry,  might  be  sufficient  to  warrant  him  in 
refusing  to  be  liable  for  further  advances,  and  in  withdrawing 
his  guaranty,  which  he  might  do  by  notice  that  he  will  be  no 
longer  responsible.^ 

§411.  Notice  of  Principal's  Failure, —  Finally,  as  to  notice  of 
the  principal's  failure  to  perform.  This  branch  of  the  ques- 
tion is  strangely  confused  by  some  of  the  authorities  with  that 
which  has  reference  to  the  notice  of  acceptance.  Cases  are 
cited,  and  opinions  referred  to,  in  suppoi't  of  the  doctrine 
requiring  or  dispensing  with  notice  of  the  acceptance  of  a 
guaranty,  and  of  the  subsequent  demand  and  non-payment  by 
the  principal,  interchangeably;  as  though  they  were  one  and 
the  same  thing.  It  is  true  that  the  general  purpose  of  the 
notice,  in  both  cases,  is  that  the  guarantor   may  be  advised  of 

"  Lowe  V.  H(Hkwitli,14  li.  Moii.,  1H4. 
*  Mason  v.  Pritchanl,  2  Camp.,  436. 

12 


ITS  KOTIOE    r.V     WIIK'H    LIAHILITIKS    CREATED 

his  liability.  Here,  however,  the  parallel  ends.  In  the  uTie 
case  the  notice  is  intended  to  render  the  guarantor  liable  in 
case  of  another's  default;  in  the  other,  he  is  notified  that  default 
lias  been  made,  and  he  becomes  liable  as  though  he  were  a 
pi-incipal.  The  notice  of  acceptance,  when  required  at  all,  is 
essential  to  the  com]>letion  of  the  contract  of  guaranty.  The 
notice  of  the  principal's  failure  is  of  the  happening  of  the  only 
contingency  to  the  creation  of  a  liability  such  as  would  arise 
from  an  original,  absolute  contract,  of  which  the  consideration 
had  passed  directh'  to  the  obligor;  it  advises  the  guarantor 
that  the  acceptor  of  the  guaranty  has  a  direct  personal  demand 
against  him.  Both  branches  of  the  question,  however,  are 
often  decided  in  the  same  ease.' 

§412.  CoiiHict  of  Authority. — The  authorities  are  very  con- 
flicting as  to  wliether  guarantors,  distinctly  recognized  as  such, 
are  entitled  to  notice  of  the  principal's  failure  to  perform  in 
any  event.  And  where  it  is  held  that  they  are  entitled  to  notice, 
there  is  no  little  contrariety  of  opinion  as  to  the  character  of 
the  notice  to  be  given. 

§413.  Early  Jlassachiisefts  Authorities. — ^  It  is  laid  down  so 
repeatedly  in  the  state  of  Massachusetts,  in  some  of  the  earlier 
cases,  that  the  guarantor  is  entitled  to  notice  of  a  demand  upon 
the  principal  and  non-payment,  by  him,  that  it  was  at  one 
tiine  regarded  as  a  settled  rule  of  law  in  that  state,  which  did 
not  depend  upon  the  nature  of  the  collateral  undertaking  so 
long  as  it  was  governed  by  the  rules  affecting  guaranties."^ 
Tliis  ccmclusion  is  clearly  deducible  from  the  authorities  cited 
as  well  as  others  from  the  same  court,  particularly'  that  of 
Ikbcock  V.  Bryant,"*  where  it  was  held  that  a  failure  to  prove 
such  notice  was  sufficient  to  defeat  plaintiff's  action  against 
tlie  guarantor,  although  it  did  not  appear  that  there  had  been 
such  a  change  in  the  circumstances  of  the  principal  defendant, 

'  Louisville  .Mamif.  Co.  v.  AVclch/tO  iTow.,  4(;i. 

•Oxford  Bank  p.  Haynes,  8  Pick..  428;  Babcock  v.  Bryant.  13  Id.,  133, 
Dole  r.  Yoiuiii.  24  Id.,  a',0;  I^ley  v  Jones,  13  Gray.,  360;  Talbot  v.  Gay,  18 
Pifk.,  5:54. 

'  Supra. 


NOTICE    OF    GUARANTY.  179 

subsequent  to  the  maturity  of  the  obligation,  as  to  work  injury 
to  his  guarantor,  or  to  discharge  him  from  liability. 

§414.  Demand  and  Notice  held  Xecessary.  —  So  in  Isley  v. 
Jones,'  where  the  action  was  on  a  guaranty  for  the  payment  of 
the  purchase  price  of  goods  sold,  it  was  held  that  the  plaintiff 
must  allege  and  ])rove  that  a  demand  had  been  made  upon  the 
purchaser  and  that  he  failed  or  refused  to  pay  the  amount  of  the 
demand.  On  exceptions  taken  to  the  ruling  of  the  trial  court, 
that  notice  to  the  guarantor  of  such  demand  and  refusal  of  the 
principal  to  comply,  was  not  essential  to  the  right  of  action  on 
the  collateral  undertaking,  the  exceptions  were  sustained  by 
the  appellate  court. 

§415.  Later  Authority — Contra  to  Above. — In  a  later  case, 
however,  by  the  same  court,  the  doctrine  laid  down  seems  to 
very  materially  modify  the  rules  theretofore  recognized  in  that 
state  with  reference  to  the  conditions  of  a  guaranty,  if  it  does 
not  abrogate  the  I'ule  entirely  as  applied  to  the  question  of 
notice.^  Judge  Wells,  in  delivering  the  opinion  of  the  court 
says:^  "The  better  doctrine,  and  that  which  seems  to  us  the 
best  supported,  both  u]^on  reasoning  and  authority,  is  that 
demand  and  notice  are  not  essential  prerequisites  to  an  action, 
and  need  not  be  alleged  nor  proved,  unless  the  terras  of  the 
guaranty,  or  the  nature  of  the  thing  guaranteed,  require  such 
proceeding  in  order  to  a  proper  fulfillment  of  the  obligations 
imposed  by  the  guaranty,  upon  the  party  holding  it,  or  in 
order  to  establish  a  default  by  the  principal,  and  a  breach  of 
the  contract  declared  on.  The  necessity  of  such  demand  and 
notice  is  not  incidental  to  the  relation  of  guarantor  and  guar- 
antee, as  it  is  to  that  of  indorser  and  indorsee,  it  must  be 
derived,  if  it  exist,  from  the  terms  of  the  contract,  or  the  na- 
ture and  circumstances  of  the  ])articular  case,  and  not  from  the 
general  rule."  Tiie  case  under  review,  was  an  action  on  a 
guaranty  of  the  payment  of  rents,  in  the  following  language: 


'  Supra. 

"Vinal  V.  Ricliardsoii,  Vi  Allen,  5'il. 

'76,537. 


180  NOTICE    KY     WIIIC'II    LIABILITIKS    CHEATED. 

"  I  lierebj  guarantee  that  G.  D.  13.  shall  pay  to  A.  V.  three 
dollars  per  week  in  advance  for  rent  of  house,  No.  9  Vinal 
Place  ;  also  one  dollar  per  week  for  back  rent  now  due,  *  * 
*  *  this  agreement  to  hold  good  for  nineteen  weeks,  or  until 
tJie  back  rent  has  been  paid."  The  doctrine  laid  down  in  the 
opinion  was  applied  bj  the  learned  judge,  who  ably  reviewed 
prior  authorities,  to  the  circumstances  of  this  case,  by  holding 
that  as  the  contract  provided  for  the  paj'inent  of  certain  sums 
at  certain  times,  fixed  and  absolute  by  the  guaranty  itself,  it 
required  no  act  of  the  plaintiif  to  precede  the  performance  of 
the  principal,  except  permission  to  occupy.  xSon-payment  by 
the  jjrincipal  was  at  once  a  breach  of  his  contract  and  that  of 
his  guarantor.  The  obligation  to  pay  did  not  depend  upon 
demand,  and  hence  the  guarantor's  liability  could  not  be  made 
to  depend  upon  notice  of  such  demand.  The  case  of  Isle}'  v. 
Jones'  is  expressly  overruled,  in  so  far  as  it  differs  from  this; 
and  other  prior  cases  in  conflict  must,  by  implication,  be 
regarded  as  sharing  the  same  fate. 

§416.  Tiidiana  Authorities.  —  In  Virden  v.  Ellsworth,-  which 
was  an  action  on  the  following  contract  of  guaranty:  "For 
value  received,  I  guarantee  the  payment  of  the  rent,  as  stipu- 
lated b}^  said  F.,  in  case  of  non-payment  by  him,"  the  com- 
plaint was  held  bad  on  demurrer,  for  the  reason  that  it 
contained  no  special  averment  of  notice  to  the  guarantor  of  the 
non-payment  of  the  rent,  "or  any  excuse  shown  for  the  failure 
to  give  such  notice  or  aver  it."  Such  notice  was  also  held 
essential  in  an  earlier  case  by  the  same  court,  where  the  action 
was  on  a  guarant}^  of  paj'ment  of  the  purchase  price  of  ^oods 
sold  and  delivered.^  Here,  however,  it  appeared  that  the  guar- 
antee had  been  guilty  of  laches,  hj  which  the  guarantor  was 
damaged,  the  principal  being  solvent  at  the  time  of  his  default, 
but  became  insolvent  before  the  institution  of  the  suit  on 
the   contract  of   guaranty.      Subsequently,  in   a   case  where 

"^  Supra. 

« 15  Ind.,  144. 

•Smith  v.  Bainbrklire,  6  Blackf.,  12. 


NOTfCK    OF    GUAKANTV.  181 

notice  was  not  given  until  nearly  a  year  after  the  principal's 
default,  where  the  question  of  damage  to  the  guarantor,  by  the 
delay,  was  not  raised,  it  was  held  by  the  same  court  that  the 
guarantor  was  liable.^  Tlie  agreement  contained  an  express 
promise  to  pay  or  secure  a  certain  sum  of  money,  and  the  collat- 
eral undertaking  was  an  absolute  guaranty  that  the  principal 
would  comply  with  the  terms  of  his  contract.  It  was  held  by 
the  court  that  the  securing  of  the  indebtedness  was  a  matter 
for  the  protection  of  the  guarantors,  and  the  duty  rested  upon 
them  to  see  that  it  was  done,  and  for  that  reason  they  could 
not  object  to  the  delay  in  giving  notice.  In  a  still  later  case, 
it  was  decided  upon  the  authority  of  Smith  v.  Bainbridge^  and 
Yirden  v.  Ellsworth,^  that  where  it  appeared  that  owing  to  the 
negligence  of  the  plaintiff  in  pursuing  his  remedy  against  the 
principal,  or  notifying  the  guarantor  of  the  principal's  default, 
the  guarantor  lost  his  remedy  against  the  principal  by  the 
latter' s  insolvency,  such  guarantor  would  be  discharged.''  In 
this  case  the  opinion  of  the  court  is  expressly  reserved  as  to 
what  might  be  the  rule  as  to  notice  in  a  case  presenting  a 
different  state  of  facts. ^' 

§417.  Negligence  of  Guarantee. —  The  foregoing  authorities 
leave  tlie  doctrine  totuni  upon  a  question  of  negligence  of  the 
guarantee,  by  which  the  guarantor  suffers  detriment — or  rather 
would  suffer  detriment,  if  he  were  still  held  on  his  contract  of 
guaranty.  There  are  also  numerous  other  cases,  both  Ameri- 
can and  English,  where  the  same  distinction  is  observed.*' 

§  418.  Rule  in  Connecticut — Absolnte  Gnaranty.  —  There  are 
other  cases  of  guaranty,  where  it  is  held  that  notice  is  unneces- 
sary, for  tlie  reasons  assigned  in   the  summary  of  the  doctrine 

•  Leonard  v.  Shirts,  :«  Ind,  214. 
■  Supra. 

'  'Supra. 

HiaU'v.  Sims,  45  Tnd.,  262. 

*  Opinion  of  Downey,  C.  J.,  lb.,  26(i. 

'Gibhs  V.  Cannon,  9  Ser?.  &  K.,  198;  Woods  v.  rtiiornmn,  71  Pa.  St.,  100; 
Hears  r.  Van  Dusen,  25  Mich.,  :',.")1  ;  Green  /;.  'riu»ni,,snu,  :{:!  la.,  293;  Jauea 
r  Scott,  59  Penn.  St.,  ITS. 


182  NOTICE    BY    WHICH    LIABILITIES    CREATED. 

contained  in  Vinal  v.  Richardson.^  As,  where  the  principal 
contracted  with  the  guarantee  to  purchase  and  pay  a  stipulated 
price  for  a  certain  number  of  trees  which  the  guarantee  under- 
took to  cultivate  for  him,  and  to  deliver  at  a  certain  time,  and 
in  default  of  compliance  with  the  terms  of  the  contract,  the 
party  so  filling  should  forfeit  and  pay  to  the  other  a  certain 
stipulated  sum.  This  contract  was  guaranteed  on  behalf  of 
the  principal  in  these  words:  "In  case  B,  one  of  the  parties 
named  in  the  foregoing  instrument,  should  incur  the  forfeit- 
ure mentioned  therein,  I  hereby  guarantee  the  payment  of  the 
same."  It  was  held  that  the  guarantor  was  not  entitled  to  notice 
of  the  principal's  failure.-  Here  the  act  guaranteed  was  to  be 
done  by  a  third  person  who  was  known.  The  guarantor  knew 
its  terms  and  the  time  of  performance,  as  well  as  the  guarantee 
and  could  have  ascertained  by  inquiry  whether  the  forfeiture 
had  been  incurred  by  his  principal,  so  that  notice  to  him  was 
unnecessary.^  This  case  also  involved  the  question  as  to 
whether  the  rule  would  be  changed  by  the  subsequent  insol- 
vency of  the  principal,  and  it  was  decided  that  the  guarantee 
was  not  required  to  use  diligence  i?i  proceeding  against  the 
principal,  and  the  fact  that  the  latter  disposed  of  his  property 
out  of  which  the  debt  might  have  been  made,  subse(puMit  to 
the  forfeiture,  would  not  discharge  the  guarantor. 

§  419.  TJncertaiiity  of  Amount.  — The  only  material  difference 
between  the  foregoing  case,  and  that  of  Craft  v.  Isham,'*  pre- 
viously^ decided  by  the  same  court,  was  that  the  amount  in  the 
case  last  cited  was  uncertain,  though  strictly  limited  to  a  speci 
■Red  sum.  The  time  fixed  for  payment  was  at  the  end  of  three 
years.  The  contract  was  as  unconditional  as  a  guaranty  can 
be — to  pay  in  case  the  principal  failed  to  do  so.     The  ei-edit  on 

'  13  Alien,  521;  «agc«.  Lewis,  68111.,  004;  I.ainplKTc  r.  C(nvoii,4-2  Vt..  IT". 

'  Hammond  v.  Gilmore,  14  Conn.,  479. 

'Farm.  &  Mech.  Bk.  v.  Kercheval,  2  Midi.,  .104;  Ward  v.  Henry,  o  Conn  , 
595;  Breed  ».  Hi llhouso,  7  Conn.,  52:5;  Willinms  r.  Grauixer.  4  I):iy,  444; 
Wri.trlit  V.  Simpson,  G  Ves.,  .Jr.,  714-34;  Dnflield  c.  IScoU,  3  J'.  11.'  374;  Vyse 
V.  Wakefield,  6  Mees.  &  W.,  442. 

*  13  Conn.,  28. 


NOTTOK    OF    GUARANTY.  183 

the  last  item  furnislied  under  the  gnarantv  expii-ed  in  about 
one  year  from  the  date  of  tlie  coiiti'act.  In  about  eighteen 
months  thereafter  the  principal  became  insolvent,  but  notice 
was  not  given  of  his  failure  to  pay,  until  six  months  after  the 
expiration  of  the  three  years.  It  was  held  that  the  guarantor 
was  entitled  to  notice  within  a  reasonable  time  of  the  princi- 
pal's default,  and  that  the  time  in  wiiich  it  was  given  in  this 
case  was  not  reasonable.  The  court,  in  this  case  follows  the 
decisions  of  the  United  States  Courts  already  cited,  as  well  as 
the  early  Massachusetts  cases,  and  the  manner  in  which  the 
case  of  Hammond  v,  Gilmore,Ms  distinguished  from  that  of 
Craft  V.  Isham^  is  that  the  latter  was  a  case  of  guaranty  by  a 
letter  of  credit,  and  the  amount  involved  was  unliquidated. 

^  420.  Means  of  Knowlodgo  within  Rt^ach  of  Gaarantor.  —  In  a 
recent  case  decided  in  Missouri,  where  the  guaranty  was  of  the 
collectibility  of  certain  notes,  it  was  decided  that  notice  was 
unnecessary.-^  Judge  Wauner  in  rendering  the  opinion  of  the 
court,  lays  it  down  that  when  a  guarantor  binds  himself  to  be 
answerable  for  a  specific  sum,  under  certain  designated  circum- 
stances, he  has  the  means  within  his  own  hands  of  determining 
the  extent  of  his  obligations.  The  learned  judge  makes  the 
following  apt  quotation  from  Lord  Abinger  in  Yyse  v.  Wake- 
field:* "The  rule  to  be  collected  from  the  cases  seems  to  be 
this,  that  when  a  party  stipulates  to  do  a  certain  thing,  in  a 
certain  specific  event,  which  may  become  known  to  him,  or 
with  which  he  can  make  himself  acquainted,  he  is  not  entitled 
to  notice  unless  he  stipulates  for  it;  but  where  it  is  to  do  a 
thing  which  lies  within  the  ])eculiai"  knowledge  of  the  opposite 
party,  then  notice  ought  to  be  given  him."* 

'  Supra. 

'  Supra. 

» Barker  v.  Scudder,  5G  Mo.,  272. 

*6  Mees.  &  W.,  442. 

'See  also,  Clay  v.  Edgorlon,  l!)0.  St.,  049 ;  Marvin  ».  Adamson,  11  la.,  871 ; 
Hough  V.  Gray,  19  Wend.,  203;  Ilcaton  d.  Iliilbcrt,  4  III.,  489;  Partridge  v. 
Davis,  20  Vt.,  499;  Sample  «.  Marliu.  4()  Iml..  22();  Burnham  v.  (iallentiiu' 
11  Iiid.,  295;  Wnlson  /■.  Bcaboul,  18  Ind.,  2SI  :  Stiidebakcr  v.  Cody,  54  Ind.i 
0-«i;  Prentiss  v.  Garland,  64  Me.,  155;  Basliford  i\  Shaw,  4  O.  St.,  203. 


184  NOT[CK    BY    WHICH    LIABILITIES    CREATED. 

§421.  Pennsylvania  Doctrine. — The  distinction  observed  bj 
the  Supreme  Court  of  Fennsjlvania  between  contracts  of  guar- 
anty, and  contracts  of  suretyship  is  one  which,  however  well 
founded  in  reason,  would  tend  to  mislead  the  inquirer  as  to  tlie 
views  of  that  court  upon  the  question  of  notice  to  guarantors, 
if  their  decisions  of  the  question  are  to  be  interpreted  by  the 
definition  of  the  term  "guaranty,"  which  seems  to  prevail 
elsewhere.  There  the  term  is  restricted  in  its  application  to 
such  contracts  as  warrant  the  abilitj^  of  the  principal  to  pay 
or  perform.  It  is  simply  an  undertaking  that  the  principal 
will  be  solvent  when  the  obligation  matures,  or  what  would 
elsewhere  be  construed  as  a  guaranty  of  collectibility;  while 
that  which  we  have  followed  the  authorities  of  other  states 
in  treating  as  an  absolute  or  unconditional  guaranty  of  pay- 
ment or  performance  by  one  originall}'  lial»le  as  a  principal,  is 
there  regarded  as  a  contract  of  suretyship.^ 

§422.  Guaranty  and  Suretyship.  —  It  does  not  seem  to  be  ma- 
terial that  the  words  "guarantee"  or  "guaranty  "  are  used  in 
the  undertaking,  it  will  not  be  construed  as  a  guarant}'  for  that 
reason,  if  it  imports  an  absolute  undertaking  to  be  responsible 
for  the  payment  or  discharge  of  the  obligation  by  the  princi- 
pal.^ In  the  case  cited,  Judge  Sharswood,  remarks.^  "The 
leaning  of  this  court,  of  late  years  has,  therefore,  very  prop- 
erly been  against  construing  such  contracts  to  be  general 
guarantees."  The  language  of  the  contract  under  considera- 
tion was  as  follows:  "I  do  hereby  guarantee  to  S.&  Co.,  the 
payment  of  contract  made  by  them  with  D.  &  W.,  to  the 
amount  of  ten  thousand  dollars."  Though  the  question  was 
not  properly  before  the  court,  it  being  unnecessaiy  to  a  decis- 
ion, the  learned  judge  plainly  intimated  that  had  it  been  raised, 
this  would  have  been  construed  as  a  contract  of  suretyship, 
upon   which    the    obligor  would    be    liable  to  the    party  for 

'Reigart©.  White,  .52  Penn.  St.,  438;  Brown  r.  Brooks,  25  Id.,  210;  .John- 
ston V.  Chapman,  3  Penn.,  18;  Tscttv.  Hogo,  3  Watts,  l'>8;  Rudy  v.  Wolf,  16 
Serg.  &  R.,  79. 

'Woods  ?).  Sherman.  71  Penn.  St.,  100. 

'lb.,  104. 


NorrCE    OF    OU.VKANTY.  185 

wliose  security  it  was  given  vvitliout  antecedent  notice  of  the 
principal's  default.^  Where,  tlieretbre,  we  find  tlie  authorities 
of  this  state  holding  that  notice  of  the  principal's  default  is 
necessary  to  hold  the  guarantor  on  his  contract,  and  that  the 
remedy  must  first  l)e  exhausted  against  a  solvent  principal 
before  an  action  can  be  maintained  against  the  guarantor,  it 
khould  be  understood  as  applying  only  to  contracts  guaranty-, 
ing  the  principal's  solvency.'^ 

§  423.  Deductions  from  Antliorities.  —  From  a  consideration 
<»f  the  reported  cases  bearing  upon  the  question,  the  current 
of  authority  seems  to  be  decidedly  in  favor  of  the  doctrine 
that  where  the  contract  of  guaranty  contemplates  indem- 
nity to  the  guarantee  in  a  certain  sum,  or  a  sum  capable  of 
Ijeing  ascertained  with  readiness  by  the  guarantor,  within  a 
certain  time,  and  depending  upon  the  single  contingency  of 
the  principal's  failure  to  ])erform,  notice  of  such  failure  is  not 
a  condition  precedent  to  the  guarantee's  right  of  recovery 
against  the  guarantor.  Whei'e  the  guaranty  is  of  the  payment 
of  a  promissory  note,  or  other  demand,  for  a  fixed  sum,  already 
owing  by  the  principal,  and  the  contract  of  guaranty  is  ex- 
pressed in  the  usual  form,  tlie  rule  is  more  nniform.  In  fact, 
the  later  authorities  are  almost,  if  not  quite,  unanimous  in 
holding  that  notice  in  such  cases  is  unnecessary.  But  where 
the  obligation  guaranteed  is  of  future  performance,  and  the 
amount  is  uncertain  within  a  limit,  there  is  a  disagreement 
which  we  shall  not  endeavor  to  reconcile.  However,  the  cur- 
rent of  modern  American  and  English  authority  is  against  the 
observance  of  the  distinction  predicated  simply  upon  the  fact 
that  the  sum  of  the  principal's  liability  actually  incurred  is 
uncertain.* 

'  Sec  also,  Anisban.ffh  v.  Gearliart,  11  Penn.  St.,  482;  Marberger  ».  Pott,  16 
Id.,  9,  Campbell  v.  Baker,  40  Id.,  243;  Alleu  v.  IIulK;rt,  49  Id.,  259. 

'  See  also,  Clay  v.  Edgerton,  19  O.  St.,  549;  Marvin  v.  Adamson,  11  la., 
371;  Hough ».  Gray,  19  Wend.,  21)2;  Flcaton  ».  llulbert,  4  111.,  489;  Partridge 
V.  Davi.s,  20  Vt.,  499;  Saini)le«.  Martin,  4(5  Iixl.,  22(J;  Burnham  /).  Gallentine, 
11  Ind.,  295;  Watson  n.  Hcabotit,  18  Ind.,  281;  SUxdabaker  t).  Cody,  54  Ind., 
r>HC,-  Prentiss  v.  Garland,  (i4  Me.,  155. 

^Holbrowi;.Wilkins,  1  B.  &  C,   10. 


186  NOTiOK  uv   WHICH   labilities  ckkated. 

§  424.  Ohligation  riiliinited  and  ITnoertaiii.  —  Where,  however, 
the  obh'gation  assumed  by  the  principal,  is  not  only  uncertain 
in  amount  within  a  fixed  limit,  but  is  unlimited,  and  for  an 
uncertain  time,  or  depends  upon  other  contingencies  besides 
the  failure  of  performance  of  the  principal,  the  knowledge  of 
the  happening  of  which  from  the  circumstances  would  prop- 
erly be  with  the  guarantee,  notice  of  the  accruance  of  the 
liability  as  well  as  notice  of  the  acceptance  of  the  guaranty 
should  be  given  the  guarantor  within  a  reasonable  time,  and 
such  notice  should  be  at  least  approximately  certain  as  to  the 
amount  of  the  principal's  indebtedness  for  which  the  guaran- 
tor is  collaterally  liable. 

§  425.  Notice  not  as  of  Dislionor  of  Commercial  Paper.  —  In  no 
case  is  it  held  that  the  guarantor  is  entitled  to  notice  within 
the  time,  or  according  to  the  formalities  required  in  order  to 
bind  drawers  and  indorsors  of  commercial  paper.  Even  where 
such  notice  has  been  held  essential  to  the  liability  of  guaran- 
tors, the  courts  have  been  liberal  as  to  the  time  in  whieli  it 
sJiould  be  given  ;  ^  and  have  even  held  that  it  would  be  suffi- 
cient when  given  after  the  suit,  commenced  without  it,  had 
been  discontinued,  provided  the  guarantor  had  not  suftered 
detriment  by  the  delay .'^ 

§420.  Notice  Excused  —  Reasonable  Time.  —  And  in  cases 
decided  by  the  courts  of  highest  authority,  where  it  is  held 
necessary  to  give  notice  to  the  guarantor  of  the  principal's 
default,  it  is  held  that  where  the  principal,  at  the  maturity  of 
the  demand,  has  become  insolvent,  and  utterly  incapable  of 
responding  to  the  claim,  notice  will  be  excused,  and  even  when 
necessary  the  time  witliiu  which  it  is  given  will  be  held  rea- 
sonable or  unreasonable,  according  to  the  circumstances  of  the 
parties  and  the  probabilities  of  injui-y  to  the  guarantor  by 
reason  of  the  delav.'^ 


»  Babco^k  r  B-yant,  12  Pick..  188. 
"■'Dole  r.  Young,  '24  Pick.,  250. 

"Louisville  Manutac.  Co.  v.  Wclcli.  10  How.,4r.l  ;  Beebe  r   Dudley,  26  N. 
H  ,  249;  Walker  r  Forbes,  25  Ala.,  139:  March  v.  Putney,  50  N.  H.,  34. 


NOTICE    OF    ASSIGNMENT,  IST 

§  427.  Waiver  of  Notice.  —  It  seems  hardly  necessary  to  add 
that  in  any  case  where  the  tact  of  the  principal's  delault  is 
well  known  to  the  i^narantor,  or  Vv^here  he,  in  anticipation  of 
such  default,  either  expressly  or  by  impYication,  toaives  notice, 
lie  cannot  afterwards  take  advantage  of  a  technical  failure  to 
notify  him  of  such  default.^  And  the  same  doctrine  as  to 
waiver  and  excuse  of  notice  would  apply  with  equal  force  to 
notice  of  acceptance  of  guaranty. 


III.  Notice  of  Assignment  of  Choses   in  Action. 

§  428.  Definition  of  Cboses  in  Action. 

429.  Not  Assignable  at  Common  Law. 

430.  Assignment  Transfers  Claim. 

431.  Assignee  Takes  Subject  to  Equities. 

432.  Effect  ot  Notice. 

433.  Assignment  Incomplete  without  Notice. 

434.  Held  Necessary  as  against  Creditors. 

435.  Object  of  Notice. 

436.  Assignee  Takes  no  More  than  Assignor  had. 

437.  By  whom  Notice  Given. 

438.  Knowledge  Presumed. 

439.  Put  upon  Inquiry. 

440.  Double  Purpose  of  Notice. 

441.  Over-due  Bills. 

442.  Negotiable  Paper  without  Indorsement. 

443.  Balance  Due  on  Account. 

444.  Policies  of  Insurance. 

445.  Notice  to  Insurer. 

446.  Conditions  of  Policy. 

447.  Assignments  of  Subject  of  Insurance. 

448.  By  Retiring  Partners. 

449.  Notice  may  be  Imj)lied. 

450.  Assignment  after  Loss. 

^  428.   Definition  of  Cl)f>se.«  in  Action.  —  The  definition  of  chases 
ill  action  as  given  by  Mr.  Biackstone  only  includes  debts  due 

'Bickford  c.  (ilbbs,  8  Cusb.,  154 


188  NOTICE    BY    WHICH    LIABILITIKS    CREATED. 

or  damages  recoverable,  for  the  breach  of  a  contract,  express 
or  implied.^  But  later  authorities  have  enlarged  the  definition 
so  as  to  embrace  all  rights  to  personal  property  not  in  posses- 
sion, which  may  be  enforced  by  action,  whether  the  owner  has 
been  deprived  of  such  possession  by  the  tortious  acts  of  an- 
other, or  by  the  breach  of  an  express  or  implied  contract.^ 

§  429.  Not  Assignable  at  Coinmi»n  Law.  —  It  is  a  rule  of  the 
common  law,  too  familiar  to  require  citation  or  illustration, 
that  rights  of  this  nature  are  not  assignable,  so  as  to  allow  the 
assignee  to  maintain  an  action  for  the  thing  assigned  in  his 
own  name.  But  courts  of  equity  and  modern  statutes  have 
virtually  abrogated  this  rule.  The  law  merchant  has  established 
a  different  doctrine,  with  respect  to  negotiable  instruments, 
assigned  before  maturity ;  but  in  so  far  as  the  doctrine  of 
notice  affects  commercial  paper,  it  is  treated  at  length  in  a 
subsequent  chapter.* 

§430.  Assignment  Transfers  Claim. — The  notice  required  in 
cases  of  assignment  cannot  be  said  in  the  strictest  sense  to 
create  a  liability.  The  original  liability  is  created  when  the 
obligation  is  incurred  by  the  debtor.  The  assignment  merely 
transfers  the  claim  from  the  original  creditor  to  his  assignee, 
and  notice  to  the  debtor  imposes  upon  him  an  obligation 
to  recognize  the  transfer,  and  pay  the  amount  due  to  the 
assignee.^ 

§431.  Assignee  takes  Snivject  to  E(iuities.  —  One  of  the  inci- 
dents of  assignments  of  demands  not  recognized  as  negotiable, 
according  to  the  law  merchant,  as  well  as  over-due  negotia])le 
paper,  is  that  the  assignee  takes  subject  to  all  equities  subsist- 
ing between  the  parties  at  the  time.'^  The  debtor  is  entitled 
to  all  credits  for  payments,  as  well  as  all  set-offs  which  he  may 

1  2  Bl.  Com.,  396-7. 

'Gillet  r.  Fairchild,  4  Den.,  80;  Hall  v.  Rolnnsou,  2  Comst.  (X.  Y.),  393; 
North  V.  Turner,  9  8.  A:  R..  244;  Jordan  ;;.  Gillen,  44  N.  H.,  424;  Griffin  v. 
Wilcox,  21  Ind.,  370;  F.nal  (-.Backus,  18  Mich.,  218;  More  v.  Massini,  32 
Cal.,  590. 

'PostCh.VI. 

*  Jones  V.  Witter,  13  Mass.,  304. 

*  Sanborn  v.  Little,  3  N.  H.,  359. 


MOTICK    OF    ASSIGKMENT.  189 

have  affainst  Lis  oriffinnl  creditor.'  Even  after  the  assiijnment 
has  been  made,  the  debtoi-,  being  ignorant  of  that  fact,  will  be 
protected  in  making  payment  of  the  debt  in  whole  or  in  part.^ 
The  right  of  the  assignee,  except  where  the  assignment  is 
authorized  by  statute,  being  equitable  rather  than  legal,  no 
court  of  equity  would  be  willing  to  interpose  in  his  behalf, 
where  the  consequence  would  be  to  subject  the  innocent  debtor 
to  the  hardship  of  being  compelled  to  make  double  payment 
of  the  demand.^ 

§432.  Effect  of  Notice.  —  But  after  the  debtor  has  received 
notice  of  the  assignment  of  the  demand,  he  cannot  discharge 
any  portion  of  the  indebtedness  by  payment  to  the  assignor.'* 
Nor  can  he  acquire  any  defense  to  an  action  for  the  debt 
assigned,  as  between  himself  and  the  assignor. 

§433.  Assignment  Incomplete  without  Notice.  —  In  one  case,  while 
admitting  that  the  weight  of  American  authority  seemed  to 
favor  the  doctrine  that  the  assignment  of  a  chose  in  action 
was  complete  in  itself  and  vested  a  perfect  title  in  the  assignee 
as  against  third  persons,  the  court  maintained  that  the  con- 
trary was  the  settled  doctrine  of  the  English  and  some  of  the 
American  courts,  and  in  that  case  chose  to  follow  the  English 
as  the  more  reasonable  and  practical  rule.^  It  was  accordingly 
there  held  that  the  assignment  of  a  chose  in  action  was  not 
complete  so  as  to  vest  the  title  absolutely  in  the  assignee  until 
notice  to  the  debtor  of  the  assio^nment.      And  therefore,  as 

'  Ford  V.  Stuart,  19  Johns.,  343 ;  Bank  of  Niagara  v.  McCracken,  18 
Johns.,  493;  Gould  v.  Chase,  16  Johns.,  226;  HackeU  v.  Martin,  8  Me.,  77. 

*  Murray  ».  Lylburn,  2  Johns.,  Ch.,  441;  Livingston  ■».  Dean,  lb.,  479; 
Davis  V.  Ban-.,  9  S.  &  R.,  137;  Mangles  v.  Dixon,  3  H.  L.  Cas.,  703;  LUe. 
Ins.,  Soc'y  v.  Pooly,  5  Jur.,  N.  S.,  129;  Faull  «.Tinsman,  36  Penn.  St.,  108 

'  Comstock  v.  Farnum,  2  Mass.,  96 ;  Stocks  v.  Dobson,  19  E.  L.  &  E.,  96 : 
Hatch  V.  Dennis,  10  Me.,  244. 

♦Fanton  v.  Fairfield  Co.  Bank,  23  Conn.,  485;  Jones  y.  Wi'ter,  13  Mass., 
304;  Raymond  v.  Squire,  11  Johns.,  47;  Small  v.  Browder,  11  B.  Mon.,  212; 
Pollard  V.  Somerset  Mul.  Fire  Ins.  Co.,  42  Me.,  221 ;  Fay  v.  Jones,  18  Barb., 
340;  Succession  of  Risley,  11  Rob.,  La.,  298;  Noble  v.  Thompson  Oil  Co., 
79  Penn.  St.,  354. 

"Clodfelter  v.  Cox,  1  Sneed,  330. 


190  NOTICE    BV    WHICH    LIABILITIES    CREATED. 

between  successive  purchasers  or  assignees,  he  would  be  entitled 
to  preference  who  first  gave  notice  to  the  debtor,  though  he 
held  by  an  assignment  subsequent  to  that  of  the  others. 

§  434.  Held  Necessary  as  Against  Creditors.  —  So  it  has  been 
held  that  notice  is  not  only  necessary  to  render  such  assign- 
ment binding  upon  the  debtor,  but  that  he  should  be  notified 
in  order  to  render  the  assignment  effectual  as  against  attach- 
ing creditors.^ 

g  435.  Object  of  Notice.  —  The  object  of  requiring  notice  of 
the  assignment  of  a  chose  in  action^  is  not,  however,  to  affect 
the  relative  riijhts  of  the  assifj-nor  and  the  assignee.  It  is  sim- 
ply  to  inform  the  debtor  that  he  is  no  longer  under  any  pecu-' 
niary  obligation  to  his  former  creditor.  That  the  latter  has, 
by  the  assignment,  divested  himself  of  all  right  to  the  disposi- 
tion of  the  money  due,  and  invested  his  assignee  with  that 
right.^  The  declaration  of  tlie  rule,  therefore,  that  notice  is 
absolutely  necessaiy  to  perfect  the  assignment,  must  be  under- 
stood with  the  qualification,  that  it  is  not  necessary  in  order  to 
render  the  assignment  binding  npon  the  assignor,  but  only  to 
bind  the  debtor  and  those  who  claim  under  him  as  creditors,'' 
and  we  have  seen  it  asserted  innocent  purchasers  from  the 
assignor,^  for  it  certainly  cannot  be  claimed  in  the  case  cited, 
that  subsequent  assignees  of  a  chose  in  action  who  take  the 
same  with  notice  of  the  former  assignment,  can  gain  any 
advantage  by  being  beforehand  with  the  prioj*  assignee  in  giv- 
ing notice  to  the  debtor. 

§  436.  Assignee  Takes  ni»  More  tliau  Assignor  Had.  —  Whether 
a  subsequent  assignee  of  a  non-negotiable  chose  in  action 
would  be  protected  in  any  event  in  his  purchase,  depends  some- 
what  upon  the  construction  to  be  given  to  such  assignments. 


'  Dix  1-.  Cobb,  4  iMass.,  oOtS.  But  see  Sleveas  o.  Stevens,  1  Ashm.  (Penn.), 
190,  when;  assii^uiucut  is  held  good  against  nltachinff  creditor  if  notice  is 
given  after  garnishment,  ])rovided  the  garnishee  liave  notice  before  answer. 
Stockton  U.Hall,  Ilaid.  (Ky.).  100. 

*  Gardner  o.  Lachlan,  4  Mylue  &  Cr.,  ISU. 

^  Supra,  J;  434.     Note. 

'  C  U)dfeller  v.  Cox,  Supra. 


NOTICE    OF    ASSIGNMENT.  191 

If  the  antliorities  are  to  be  relied  upon  in  this  respect,  it  may 
be  safely  assiiiued  that  the  assignee  takes  no  greater  right  in 
the  security  assigned  than  his  assignor  had  before  the  transfer, 
and  that  the  purchaser  takes  the  demand  subject  to  all  equities 
subsisting  against  it  in  the  hands  of  his  assignor.^  Xotice  is 
not  necessary  to  divest  the  assignor  of  all  right  or  title  to  the 
thing  transferred.  However  ineffectual  his  act  may  have  been 
to  clothe  his  assignee  with  the  cliaracter  of  a  creditor,  as  be- 
tween such  assignee  and  the  party  indebted,  so  as  to  oblige  the 
latter  to  recognize  the  claim,  he  has  at  least  parted  with  his 
entire  interest,  in  the  debt,  and  ceased  to  have  any  rights 
equitable  or  legal  with  respect  thereto.  This  being  his  status 
it  is  difficult  to  see  how  he  can  transfer  anything  to  a  subsequent 
assignee.  The  doctrine  laid  down  in  Clodfelter  v.  Cox,^  is  un- 
supported either  by  reason  or  authority.  It  was  not  only 
unnecessary  to  a  decision  of  the  case,  but  it  did  not  have  the 
slightest  influence  upon  the  decision,  as  it  was  decided  in  favor 
of  the  prior  assignee,  and  the  adverse  party  claimed  in  the 
capacity  of  an  attaching  creditor,  rather  than  a  subse<pient 
assignee. 

§437.  By  wlioin  Xotice  Given. — The  notice  will,  from  the 
situation  of  the  parties,  and  their  interest  in  the  event,  gen- 
erally come  from  the  assignee  of  the  debt  or  demand.  It  is 
for  his  interest  that  the  notice  is  given.  He  is  the  party  to  be 
benefited  thereby.  But  it  is  probable  that  notice  or  knowledge 
of  the  assignment  coming  to  the  debtor  from  any  source,  would 
so  far  affect  his  conscience  as  to  prevent  him  from  discharging 
the  indebtedness  by  payment  to  his  original  creditor. 

§438.  Kmmledge  Presumed. — Facts  and  circumstances  suffi- 
cient to  raise  a  presumption  of  knowledge  in  the  debtor,  of 
the  assignment  of  the  debt,  have  been  held  to  amount  to 
notice  by  which  he  would  be  estopped  from  the  acquisition  of 
a  defense  against  the   same,  subse(pient   to   his  knowledge  of 

'  Bush  ».  Lathroj),  22  N.  Y.,  .iSo ;  Burtlett  );.  Pearson.  29  Me.,  9,  15 ;  1  Para, 
on  Cent.,  227,  and  cases  cited;    Norton  «.  Rose,  2  Wash.  (Va.),  2:5:j. 
''  Supra. 


192  NOTICE    BY    WHICH    LIABILITIES    CREATED. 

such  facts.^  Here  the  doctrine  was  distinctly  recognized  that 
after  the  assignment,  whether  notice  had  been  given  or  not, 
the  assignor  had  no  more  power  over  the  chose  i7i  action  tha.n 
a  mere  stranger.  But  the  subject  of  the  assignment,  being  in 
the  shape  of  a  note,  which  was  transferred  without  indorse 
ment,  and  for  that  reason  subject  to  equities,  knowledge  of  the 
fact  that  such  note  was  in  the  hands  of  the  assignee  was  held 
sufficient  to  raise  a  jDresumption  that  the  maker  had  notice  of 
the  assignment,  from  the  time  he  knew  of  such  possession.'^ 
But  it  has  been  held,  on  the  other  hand,  that  merely  putting  a 
letter  in  the  post  office,  directed  to  the  debtor,  and  containing 
a  notice  of  the  assignment,  would  not  be  sufficient  to  vest  such 
title  to  a  note  thus  assigned  in  the  assignee,  as  would  enable 
him  to  maintain  an  action  thereon  against  the  debtor,  where 
the  letter  containing  the  notice  was  never  received  by  the  party 
to  whom  it  was  addressed.^ 

§  439.  Put  upon  Inquiry.  —  But  where  the  assignor  of  a  ware- 
house receipt  was  in  possession  of  sufficient  notice  to  put  him 
on  inquiry  which  would  have  led  to  a  knowledge  of  its  fraud- 
ulent issue,  not  only  would  he  be  affected  with  full  knowledge 
of  the  taint,  but  an  equity  in  favor  of  the  true  owner  of  the 
goods  stored  would  attach  to  the  receipt,  and  follow  it  into  the 
hands  of  the  assignee,  who  would  hold  the  same  subject  to  all 
such  equities  as  his  assignor  had  received  notice  of,  prior  to 
notice  of  the  assignment.^ 

§  440.  Double  Purpose  of  Notice.  —  It  will  be  observed  that 
this  notice  serves  a  double  purpose.  It  is  not  only  intended 
to  affect  the  debtor  so  as  to  cut  off  subsequently  acquired 
defenses  against  the  assignor,  but  it  is  to  inform  such  debtor 
of  his  liability  to  the  assignee.     When  the  latter  demands  pay- 

'  Hackett  v.  Martin,  8  Me.,  77. 

'76.,  79.  But  see  Cahoon  v.  Morgan,  88  Vt.,  234,  where  it  is  held  that  a 
demand  from  tlie  assio;nee  i.s  not  sufficient  notice. 

^Judah  V.  .Judd,  5  Day,  534. 

"Commercial  Bank  of  Rochester,  ??.  Colt,  1.")  Barb.,  506.  See  Smith  v. 
Smith,  2  Cr.  &  M.  Exch.,  231,  where  information  in  course  of  casual  con- 
versation  was  held  sufficient. 


NOTICE    OF    ASSIOXMENT.  193 

ment,  lie  ought  to  be  prepared,  not  only  to  give  sucli  notice  as 
would  suffice  to  prevent  payment  to  the  assignor,  but  to  sat- 
isfy the  debtor  of  the  reality  of  the  transaction,  so  that  he 
could  have  no  reason  to  doubt  it.^ 

§441.  Overdue  Bills.  —  Tlie  rule  requiring  notice  to  the 
debtor  of  the  assignment  of  a  demand  in  favor  of  his  creditor, 
in  order  to  create  a  liability  as  between  him  and  the  assignee, 
is  not  confined  to  snch  as  do  not  belong  to  the  class  known  as 
negotiable  instruments.  It  applies  to  all  such  instruments  as 
bear  on  their  faces  the  evidence  of  dishonor.  A  note  or  bill 
which  is  past  due  and  unpaid,  will  be  subject,  in  the  hands  of 
an  assignee,  until  the  debtor  is  notified  of  the  assignment,  to 
the  same  equities  as  would  have  affected  it  in  the  hands  of  the 
party  from  whom  it  was  received.^ 

§  442.  Negotiable  Paper  without  Indorsement.  —  And  even 
negotiable  paper,  assigned  before  maturity,  will  be  subject  to 
the  same  rule  when  it  passes  otherwise  than  by  indorsement. 
It  is  not,  therefore,  the  essential  character  of  the  demand 
assigned,  which  renders  notice  necessary,  so  much  as  the  man- 
ner in  which  the  title  thereto  is  transferred.  When  the  written 
evidence  of  indebtedness  is  non-negotiable  or  overdue,  indorse- 
ment will  not  obviate  the  necessity  of  notice  ;  but  when  nego 
tiable  paper  requiring  indorsement  is  assigned  by  delivery 
notice  has  been  held  necessary  to  perfect  the  assignment.^ 

§443.  Balance  Due  on  Account  —Another  class  of  claims 
which  are  subject  to  the  rule  as  to  notice,  and  which  frequently 
call  for  its  application,  are  such  as  grow  out  of  mutual  dealings 
between  the  original  parties.  In  such  cases  a  balance  due  one 
of  the  parties  may  be  assigned,  so  as  to  give  the  assignee  the 
same  rights  with  respect  thereto  as  possessed  by  the  assignor, 
at  the  time  the  balance  was  struck ;  but  should  the  account 
be  kept  open,  the  party  against  whom  the  balance  is  claimed 

'Davenport  v.  Woodbridge,  8  Me.,  17;  Jol)nson  v.  Bloodgood,  t  .Johns., 
Cas.,  51 ;  Bean  v.  Simpson,  16  Me.,  49 ;  Anderson  v.  Van  Allen,  12. Johns.,  343. 

'^  Story  on  Prom.  Notes,  i:5 190,  and  cases  cited. 

^HackettB.  Martin,  8  Me.,  77;  MaUhews  c.  Houghton,  10  Me.,  420;  Jones 
9.  WiUer,  13  Mass.,  304. 

13 


104  iS'OTIUE    BY    WlllCir    LIABILITIES    CREATED. 

will  be  entitled  to  reduce  the  demand  by  credits  in  his  favor  as 
against  the  assignor,  until  notified  of  the  assignment,  but  no 
longer.^ 

§444.  Policies  of  Insurance.  — A  class  of  claims  which  fre- 
quently become  the  subject  of  assignment,  either  absolutely  or 
as  security  for  debt,  are  policies  of  insurance.  These  are 
peculiarly  afi'ected  by  the  want  of  notice,  as  well  on  account 
of  the  stipulations  in  the  policy,  as  bj^  reason  of  some  points  of 
essential  difference  between  contracts  of  this  kind  and  those  of 
a  more  general  character.  "Where,  by  the  terms  of  the  policy,  the 
assured  is  required  to  give  notice  of  its  assignment,  together 
with  the  transfer  of  the  insured  pro]ierty,  in  order  to  save  the 
policy  from  forfeiture,  there  is  a  stronger  reason  for  enforcing 
this  condition  ag-ainst  the  assignee  than  exists  with  reference 
to  ordinary  assignable  contracts.  The  obligation  assumed  by 
the  insurer  to  indemnify  the  assured  against  loss,  is,  to  a  con- 
siderable extent,  personal  in  its  character.  It  is  an  obligation 
he  might  be  willing  to  assume  in  favor  of  one  person,  while 
if  the  indemnity  were  in  favor  of  a  different  person,  the  risk 
might  in  the  estimation  of  the  insurer  be  considerably  en- 
hanced.^ 

§  445.  Notice  to  Insurer.  —  IS^otice  to  the  insurer,  of  the  mort- 
gage of  the  insured  property,  and  the  assignment  of  the 
mortgagor's  interest  in  the  policy  to  the  mortgagee,  is  required, 
in  order  that  the  party  liable  may  be  fully  advised  as  to  who 
has  an  interest  in  the  indemnity.  But  while  such  notice, 
as  in  other  cases  of  assignment,  may  suffice  to  prevent  the 
payment  of  the  loss,  should  one  occur,  to  the  assured,  regard- 
less of  the  rights  of  his  assignee,  it  will  not  prevent  a  subse- 
quent forfeiture  of  the  policy,  by  a  breach  of  its  essential 
conditions  on  the  part  of  the  mortgagor.^ 

g  446.  Conditions  of  Policy.  —  So  wliere  the  owner  of  a  vessel 
procured  insurance  thereon  and  assigned  the  policy  to  a  mort- 

'  Bartlett  v.  Pearson.  21)  Me,  9. 

''  Hobbs  V.  Memphis  Ins.  Co.,  1  Sneed,  444. 

3  Grosvenor  v.  Atlantic  Fire  Ins.  Co.,  17  X.  Y.,  391. 


NOTICE    OF    ASdIGNMKNT.  11)5 

gagee,  with  the  assent  of  the  iusurer,  it  was  held  that  the 
assignee  took  subject  to  all  the  conditions  of  the  policy,  and  a 
subsequent  over-insurance  by  the  mortgagor  would  render  the 
first  policy  void,  this  being  one  of  the  conditions  upon  which 
it  was  issued.^ 

§447.  Assignment  of  Subject  of  Insurance.  — But  in  a  case  of 
insurance  where  one  of  the  conditions  of  the  policy  was,  that, 
in  case  the  interest  in  the  property  of  the  insured  was  con- 
veyed without  the  consent  of  the  insurer,  the  policy  should 
thereby  be  rendered  void,  it  was  held  that  such  forfeiture 
should  not  affect  the  insurance  upon  an  interest  previously 
conveyed  or  assigned  with  the  consent  of  the  insurer.^ 

§  448.  By  Retiring  Partners.  —  Where  the  terras  of  the  policy 
prohibit  an  assignment  without  notice,  an  assignmeiit  by  the 
retiring  member  of  a  partnership,  to  his  late  co-partner,  is 
equally  within  the  terms  of  the  prohibition  as  though  it  had 
been  made  to  a  stranger.^ 

§  449.  Notice  may  be  Implied,  —  ITotice  of  the  assignment  of 
an  insurance  policy,  or  of  an  interest  in  the  subject  of  insur- 
ance need  not  be  express.  It  may,  like  any  other  fact,  be 
inferred  from  other  facts  and  circumstances.  So,  where  a 
retiring  partner  assigned  his  interest  to  his  co-partner,  who 
continued  the  payment  of  the  premiums  to  the  agent  of  tlie 
insurer  for  four  years  after  such  assignment,  these  facts  were 
lield  to  be  competent  evidence  from  which  the  jury  might 
draw  the  inference  that  the  assignment  was  known  to  the 
insurer  when  the  premiums  were  received,  and  such  knowl- 
edge would  dispense  with  any  formal  notice.'* 

§450.  Assignment  after  Loss.  —  An  assignment  of  a  policy 
ot  insurance,  witliout  notice  of  such  assignment  to  tlie  insurer, 
does  not  always  work  a  forfeiture  of  the  interest  in  the  policy. 

'  Buffalo  Steam  Enginf3  Works  v.  Sun  Mutual  Ins.  Co.,  17  N.  Y,,  401 ;  State 
Mutual  Fire  Ins.  Co.  v.  Iloberts,  .31  Pean.  St.,  438;  Contra,  see  Trader's  Ins. 
Qo.v.  Uobeits,  9  Wend.,  404. 

'  Boynton  v.  Clinton  &  Essex  Insurance  Co.,  10  Barb.,  254. 

'  Buckley  v.  Garrett,  47  Penu.  St.,  204. 

♦76. 


196  NOTICE    BV    WinCII    LIABILITIES    CREATED. 

This  is  probably  true  of  all  policies  after  the  occurrence  of  the 
loss,  by  which  the  demand  is  rendered  absolute  and  uncon- 
ditional. But  notice  of  assignment  after  loss,  would  be 
required  for  substantially  the  same  reasons  as  apply  to  the 
assiffument  of  other  thino^s  in  action.  It  has  been  held  that 
the  assignment  of  a  policy  by  the  assured,  without  notice  to 
the  insurer  left  the  proceeds  of  the  policy  in  the  order  and  dis- 
position of  the  insured,  and  upon  his  becoming  bankrupt,  the 
same  went  to  his  assignees.  ^ 


IV.  Notice  to  Carriers  and  Other  Bailees. 


§451.  Divis'.on  of  tlie  Subject. 

452.  Notice  of  Goods  Delivered  for  Carriage. 

453.  Deposited  at  Wharf  or  Left  at  Receiving  House. 

454.  Wlien  Notice  Necessary. 

455.  Delivery  Pursuant  to  Understanding. 

456.  Delivery  on  Private  Wharf. 

457.  Stoppage  in  Transitu. 

458.  Inquiry  Confined  to  Atfect  upon  Carriers. 

459.  Time  of  Giving  Notice. 

460.  During  Transit. 

461.  Before  Arrival  and  Demand. 

462.  Concurrent  Facts. 

463.  Effect  of  Notice. 

464.  End  of  Transitus  by  Delivery. 

465.  Fact  of  Delivery  Determined  by  Intent 

466.  Consignee's  Possession  Ends  Transit. 

467.  Views  of  Chancellor  Kent. 

468.  Carrier  Discharged  by  Notice  at  End  of  Journey. 

469.  Storage  in  Government  Warehouse. 

470.  Notice  to  Employer. 

471.  Responsibility  of  Carrier. 

472.  Effect  of  Assigning  Bill  of  Lading. 

'7ft  re  Colville,  1  Montag.,  110. 


TO    CARKIERS    AND    OTIIKR    UAILEE8.  197 

473.  Must  be  to  Bona  Fide  Purchaser. 

474.  End  of  Transit  by  Interception. 

475.  Preferred  to  Judgment  Creditor. 

476.  By  Whom  Given. 

477.  By  Factor. 

478.  By  Party  to  Contract  Respecting  the  Goods. 

479.  By  Owner's  Guarantor. 

480.  By  Agent. 

§  451.  Division  of  the  Subject.  —  The  matter  with  respect  to 
which  notice  affects  carriers  and  other  bailees  for  hire,  so  as  to 
create  liabilities  in  favor  of  others  and  against  them,  has  refer- 
ence. 1.  To  the  delivery  of  the  goods,  wares  and  merchandise 
to  be  carried,  or  the  things  committed  to  their  charge.  2.  No- 
tice of  riffhts  of  others  in  conflict  with  those  of  consij^nees. 

§  452.  Notice  of  Goods  Delivered  to  Carrier.  —  Circumstances 
beyond  the  control  of  the  consignor  or  bailor  may  prevent  snch 
a  direct  or  personal  delivery  of  the  things  bailed,  into  the  pos- 
session of  the  bailee,  as  to  render  it  certain  beyond  a  doubt 
that  they  are  actually  received.  The  employment  of  inade- 
quate means  and  facilities  for  storage  or  handling  of  the  goods, 
or  incompetent  or  dishonest  agents  or  servants,  may  render  it 
extremely  inconvenient,  or  even  impossible,  for  the  bailor  to 
deliver  the  things  when  and  where  the  other  party  is  prepared 
to  take  them  into  his  possession  and  receipt  for  them,  so  that 
there  will  be  no  room  to  doubt  the  completion  of  the  transac- 
tion and  the  perfection  of  the  bailee's  liability.  This  branch 
of  the  law  is  practically  applied  almost  exclusively  to  the  lia- 
bility assumed  by  carriers  ;  but  as,  under  the  same  circum- 
stances, substantially  the  same  rule  would  govern  other  bailees 
for  hire,  the  principles  here  enunciated  will  be  understood  to 
apply  in  a  general  way  to  all  cases  of  bailment.'^ 


'  Carriers  may  also  be  charged  with  notice  of  the  character  of  goods  deliv. 
ered  to  them  for  carriage,  and  when  so  notified  will  l)c  held  responsible  for 
the  care  of  the  goods  according  to  tiieir  peculiar  nature.  For  such  purposes, 
printed  or  other  notice  on  the  package  will  liave  this  effect,  as  :  "  Glass — 
"With  care— This  side  U])."  Hastings  v.  Pepper,  11  Pick.,  41;  Mechs.  and 
Traders'  Bank  v.  Gordon,  5  La.  Aji.,  604. 


19S  NOTICE    BV    WIUCII    LIABILITIi;S    CREATED. 

g  453.  Deposited  at  Wharf.  —  "When  goods  are  depositod  for 
ti-aiisportatiou  at  a  public  wliarf,  where  there  is  no  one  acting 
on  behalf  of  the  carrier  to  receive  them,  and  there  has  been 
I  no  previous  arrangement  with  the  carrier  that  leaving  them  at 
such  place  shall  be  treated  as  equivalent  to  a  delivery,  in  order 
to  render  the  carrier  liable,  as  such,  for  the  goods,  he  should 
have  notice  that  they  were  left  at  the  wharf  for  the  purpose  of 
being  transported  hj  the  carrier  notified.''  But  when  the  arti- 
cles were  shown  to  have  been  left  at  a  receiving  house,  where 
the  carrier  was  accustomed  to  receive  parcels,  and  were  deliv- 
ered to  some  one  in  charge  of  the  house,  this  was  held  to  be 
the  legal  equivalent  of  actual  personal  delivery  to  the  carrier 
himself,  and  the  time  of  so  leaving  the  goods  would  be  the 
date  of  the  inception  of  the  carrier's  liability.^ 

§  454.  Wlien  Notice  Necessary.  —  When,  however,  from  the 
circumstances  surrounding  the  transaction,  it  is  adjudged  nec- 
essary to  give  notice  to  the  carrier  that  the  articles  have  been 
left  for  him  at  some  public  place,  as  a  wharf  or  landing,  unless 
the  bailor  lias  done  so  in  conformity  to  some  established  cus- 
tom of  the  carrier,  or  a  previous  direction  from  him,  either 
express  or  implied,  such  carrier  may  refuse  to  accept  the  goods 
at  that  place.  It  is  only  when  the  carrier,  upon  receiving 
notice,  expressly  or  tacitly  assents  to  such  delivery,  that  such 
notice  operates  to  create  a  liability  to  the  bailor,  by  which  the 
carrier  would  become  responsible  for  the  articles  delivered.^ 

§  455.  Delivery  Piu-suant  to  Understanding.  —  As  the  carrier 
will  be  bound,  without  express  notice,  by  a  delivery  at  the 
place  indicated  by  custom  for  receiving  articles  for  trans- 
portation,^ by  a  much  stronger  reason  would  his  responsibility 
arise  from  a  deposit  at  a  place  where  he  had  agreed  to  receive 
freight.  Such  deposit  has  been  lield  to  be  implied  notice  in 
itself,  and  sufficient  to  fix  the  carrier's  liability.^ 

'  Buckman  v.  Levi,  .8  Camp.,  414. 

"Burrell  v.  North,  2  Carr.  &  K.,  680:  Packard 'r.  Getuian,  6  Cow.,  757. 

*Ibid;  Buckman  v.  Levi,  3  Camp.,  414. 

"  Burrell  v.  North,  Supra. 

'Merriam  c.  H.  «fc  N.  H.  R.  R.  Co.,  20  Conn.,  3-54. 


TO    CARRIERS    AND    OTHER    BAILEES.  190 

§  456.  Delivery  on  Private  Wliarf.  —  A  delivery  of  property 
for  transportation  on  tlie  private  dock  or  wharf  of  the  carrier, 
used  exclusively  by  himself,  would  be  considered  as  a  personal 
delivery  to  the  carrier,  and  therefore  would  not  require  notice 
in  order  to  render  such  carrier  liable  from  the  time  of  the 
delivery.^ 

§457.  Stoppage  in  Transitu.  —  The  principal  circumstance 
calling  for  notice  to  carriers,  or  other  bailees,  of  rights  to  the 
thing  bailed,  adverse  to  those  of  consignees,  is  where  the  goods 
or  merchandise  carried,  is  stopped  in  transitu  by  the  vendor. 
The  event  which  calls  for  the  exercise  of  the  vendor's  rio^ht  of 
stoppage  in  transitu,  is  when  tlie  goods  purchased  have  not 
been  paid  for,  and  the  purchaser  has  become  insolvent.^  The 
.usual  manner  of  stoppage  is  by  a  countermand  to  the  carrier 
while  the  goods  are  still  in  contemplation  of  law,  in  transit; 
but  this  seems  not  indispensable  to  the  main  purpose  for  which 
the  right  is  asserted.  The  object  of  such  countermand  is  not 
merely  to  affect  the  carrier  with  notice  of  the  right  asserted, 
and  thus  implicate  him,  upon  his  refusal  to  comply.  The 
chief  end  to  be  attained  is  to  affect  the  consignee  with  notice 
through  the  carrier,  and  this  may  in  some  instances  be  accom- 
plished by  an  open  and  notorious  assertion  of  the  right  of 
reclamation  in  any  other  form.  A  countermand  of  the  con- 
signee's right  to  receive  the  goods  will  have  the  same  effect  to 
prevent  the  loss  of  the  vendor's  right  of  stoppage  m  transitu, 
as  though  the  carrier  were  notified  not  to  deliver  them.^  As, 
in  the  case  cited  where  the  bills  drawn  against  the  sliipraent, 
were  protested,  and  the  consignor  notified  the  assignees  of  the 
consignee,  of  the  fact,  and  proposed  that  they  should  either  be 
delivered  to  his  own  agent  to  await  the  fate  of  the  bills,  or 
that  the  assignee  should  keep  a  separate  account  of  sales,  and 
in  the  event  of  the  acceptance  of  the  latter  alternative,  pros- 
pectively demanded  tlie  proceeds,  as  his  property,  this  was 

'  Merriani  v.  H.  &  N.  II.  K.  R.  Co.,  20  Conn.,  354. 
«  Benj.  on  Sales,  ,t;t;  7fi(),  mi. 
3  Bell  v.  Moss,  5  Wliart.,  189. 


200  NOTICE  BY  wnicir  liabilitiks  created. 

held  a  distinct  enunciation  of  the  vendor's  right  of  stoppage, 
and  was  therefore  sufficient  to  bind  the  assignee. 

§  458.  Inquiry  Confined  to  Affect  Upon  Carriers,  —  But  how 
interesting  and  profitable  soever,  a  general  inquiry  into  the 
origin,  nature  and  objects  of  this  important  right,  which  is 
recognized  bv  all  commercial  peoples,  might  prove,  it  is  only 
intended  here  to  present  so  ranch  as  affects  the  carrier  in 
whose  hands  the  goods  are  stopped  at  the  instance  of  the 
vendor.  Anything  more  than  this  would  be  beyond  the 
legitimate  scope  of  a  work  of  this  kind. 

§  459.  Time  of  Giving  Notice,  —  One  of  the  most  important 
matters  for  consideration  in  connection  with  this  subject  is 
the  question,  when,  in  the  course  of  the  shipment  must  the 
notice  be  given,  in  order  to  fix  the  liability  of  the  carrier  to 
the  consignor  or  vendor?  It  is  not  a  sufficient  answer  to  this 
to  say  that  it  should  be  before  the  arrival  of  the  goods  at  their 
destination,  nor  even  that  it  should  be  prior  to  the  delivery. 
It  may  be  given  after  their  arrival  at  the  place  where  they  are 
to  be  delivered,  and  the  right  of  stoppage  may  be  lost  before 
their  actual  delivery  to  the  consignee.^ 

§  460.  During  Transit.  —  It  may  be  laid  down  as  a  general 
rule  that  notice  to  a  carrier  of  the  vendor's  intention  to  reclaim, 
by  a  countermand  of  the  order  for  the  delivery  of  the  goods 
shipped,  will  be  in  time,  if  given  while  the  goods  are  still  in 
transit.^  This  requires  a  determination  of  the  question, 
when  does  the  transit  cease?  Certainly  not  in  every  instaiice 
with  the  end  of  the  voyage.  It  cannot  properly  be  said  to 
continue  merely  during  the  time  intermediate  between  the 
actual  commencement  of  the  journey  from  the  place  where  the 
goods  are  sold,  to  the  place  where  the}'  are  to  be  delivered. 
Such  a  construction  would  exclude  all  the  time  intervening 
between  the  deliv-ery  of  the  goods  to  the  carrier,  and  their 
actual  departure,  as  well  as  the  time  subsequent  to  their 
arrival,  and  ])ri(>r  to  accej)tance  by  the  consignee.     It  may  be 

'  Motlrain  k.  lleyer,  5  Den.,  02!*;  see  also  cases  clR-cI,  I.tfra. 
^  Infra. 


TO    CARRIERS    AND    OTHER    BAILEES.  201 

said  therefore  that  the  goods  are  in  transit  and  subject  to  the 
right  of  stoppage  i?i  transitu,  from  the  time  the  carrier 
becomes  charged  with  their  possession,  nntil  his  liability  as 
carrier  terminates.^ 

§461.  Before  Arrival  and  Demand.  —  In  accordance  with  this 
view  it  has  been  held  that  the  notice  to  the  carrier  must  be 
before  the  arrival  of  the  goods  at  their  destination  and  a 
demand  therefor  by  the  consignee  or  his  legal  representative.' 

§  462.  Concurrent  Facts.  — The  doctrine  that  in  order  to  defeat 
the  right  of  stoppage  in  transitu,  the  arrival  at  the  place  of 
destination  and  the  demand  by  the  consignee  must  be  concur- 
rent facts,  though  not  fully  settled,  is  well  illustrated  by  the 
case  of  Hoist  v.  Pownal.^  It  was  there  laid  down  by  Lord 
Kenyon  that  in  order  to  give  the  consignee  a  right  to  claim  by 
virtue  of  possession,  it  should  be  a  possession  obtained  by  him 
on  the  completion  of  the  voyage,  and  that,  in  that  case,  the 
voyage  was  not  completed  until  the  carrier  had  performed 
quarantine.  In  this  opinion  the  court  of  Kings  Bench  con- 
curred, and  the  verdict  was  entered  up  for  plaintiff,  the  vendoi*, 
whose  agent  had  claimed  the  cargo  before  the  completion  of 
the  quarantine,  notwithstanding  the  consignee's  prior  posses- 
sion ;  but  perhaps  the  weight  of  authority  is  in  tavor  of  the  right 
of  the  vendee  to  anticipate  the  termination  of  the  voyage  at 
any  point,and  by  obtaining  possession,  put  an  end  to  the  transit- 
us.*  But  this  has  been  qualified  by  the  provision  that  the 
interruption  of  the  transit  by  the  purchaser  shall  be  in  good 
faith.5 

§463.  Effect  of  Notice.  —  From  the  foregoing  it  will  appear 
that  the  notice  of  stoppage  given  to  the  carrier,  is  not  only 
sufficient  to  fix  his  liability,  as  for  conversion  of  the  goods  in 

'  Infra. 

2  Bird  V.  Brown,  14  .Tur.,  132. 

nEsp.,  240. 

•»  Whit,  head  v.  Anderson,  9  M.  &  W.,  518;  Lond.  &  N.  W.  R.  Co.  v.  Bart- 
leU,  7  H.  &  N.,4()();  Wood  v.  Yeatman,  l.O  B.  Mon.,  270;  Poster  v.  Franip- 
tou,  «  n.  ik  C,  107;  MoJir  o.  Boston  &  Albany  li.  K.  Co.,  lOJ  Mass.,  67. 

'  Mohr  V.  B.  &  A.  K.  R.  Co.,  Supra. 


202  NOTICE    BY    WIIICIT    LIABILITIES    CREATED. 

case  he  allows  them  to  l)e  taken  while  tlie  seller's  right  of  con- 
trol remains  intact,  but  that  it  is  sufficient  to  invest  the  right 
of  possession  in  the  original  owner,  so  that  he  may  reclaim 
the  goods  from  an  insolvent  or  bankrupt  consignee  or  his 
assignees.  The  possession  obtained  by  the  consignee,  in  order 
to  work  a  complete  divestiture  of  the  sellers  rights  with  re- 
spect to  the  property,  if  not  required  to  be  regular,  in  the  sense 
that  it  is  acquired  at  the  end  of  the  voyage,  should  at  least  be 
rightful,  in  the  sense  that  it  was  obtained  with  the  seller's 
consent  and  not  against  his  protest.  Thus,  where  the  notice 
was  given  the  owners  of  canal  boats  at  one  of  the  termini  of  the 
route,  and  in  transmitting  instructions  pursuant  to  such  notice, 
to  the  place  of  destination,  a  mistake  was  made  by  the  carrier 
in  the  names  of  the  consignees,  this  was  held  not  to  aifect  the 
seller's  right  of  reclamation,  after  the  goods  had,  in  conse- 
quence of  the  mistake,  been  delivered  to  the  purchaser,  the 
notice  having  been  given  before  the  transit  was  completed.* 

^  464.  EihI  of  Transitns  by  DMivery.  —  In  many  of  the  cases 
the  transitns  is  held  to  be  at  an  end  only  with  the  delivery  of 
the  goods  t(j  the  consignee,  his  agents  or  representatives.^  And 
in  order  to  avoid  the  consequences  of  following  tliis  rule  strictly 
in  certain  cases,  where  it  seemed  that  actual  deliveiw  should 
not  be  required,  the  doctrine  of  constructive  delivery  is  resorted 
to.^  While  in  J3ird  v.  Brown,^  it  is  maintained  with  a  fair 
show^  of  reason  that  the  transltus  may  be  ended  without  deliv- 
ery either  actual  or  constructive,  by  a  simple  demand  for  the 
goods  by  the  purchaser  or  his  representatives,  although  posses- 
sion is  tortiously  withheld  by  the  carrier,  and  that  a  subse- 
quent notice  of  stoppage  would  not  be  effectual.  But  even 
where  this  is  accepted  as  the  correct  doctrine,  it  must  be  qual- 

'  Litt  t.  Cowley,  7  Tiiunt.,  100;  Bell  c.  Moss,  5  Wliart.,  189. 

^Foster  t.  Framptou,  6  Barn.  &  Cres.,  107;  Buckley  -o.  Furniss,  15  Wend. 
137:  Seymour  i\  Xewton,  105  Mass.,  272;  Sawyer  «.  Josl in,  20  Vt.,  172; 
Newhall  d.  Vargos,  13  Me.,  93;  Hays  r.  Monille,  14  Penn.  St.,  48;  Aguirre 
•D.  Parmelee,  22  Conn.,  413. 

^Jordon  <;.  .Jamei^,  5  Ohio,  98;  Sawyer  «.  Josliu,  Supra. 

*Arde  5^401. 


TO    CARRIEKS    AND    OTIIEH    BAILEES.  203 

ified  by  the  provision  that  nothing  farther  remains  to  be  done 
before  the  notice  of  stoppage,  in  order  to  entitle  the  purchaser 
to  the  possession  of  the  goods.  Thus,  where  the  buyer  having 
become  bankrupt  after  the  purchase  and  before  the  arrival  of 
the  goods,  his  assignee  demanded  them  and  went  on  board  the 
vessel  and  laid  his  hands  upon  a  portion  of  the  articles  pur- 
chased, and  the  master  of  the  vessel  promised  to  deliver  tliem 
when  he  was  satisfied  as  to  his  freight.  Before  the  freight  was 
paid  the  vendor  went  on  board  and  gave  notice  of  stoppage,  to 
the  officer  in  charge,  and  it  was  held  that  as  the  master  had 
not  contracted  to  hold  as  the  agent  of  the  assignee,  the  tran- 
situs  was  not  ended  and  the  notice  of  stoppage  was  sufficient.^ 
But  it  has  been  strongly  intimated  that  the  mere  non-payment 
of  the  freight  w^here  the  goods  are  held  subject  to  the  orders 
of  the  consignee  and  to  be  delivered  upon  payment,  will  not 
render  the  goods  liable  to  stoppage  in  transitu.'^ 

§  465.  Fact  of  Delivery  Determined  by  Intent.  —  The  conflict 
of  authority  is  too  decided  to  admit  of  the  deduction  of  a 
rule,  as  to  what  acts  on  the  part  of  the  purchaser  without  the 
concurrence  of  the  carrier  will  suffice  to  cut  off  the  vendor's 
right  of  stoppage.  But  it  is  quite  clear,  that  where  possession, 
actual  or  constructive,  is  required,  the  fact  must  be  determined 
by  the  manifest  intent  of  the  parties  with  respect  to  the  prop- 
ert}^  and  their  conduct  must  be  interpreted  by  what  it  was 
meant  to  signify  in  each  particular  case,  rather  than  by  the 
construction  placed  upon  similar  acts  in  other  cases,  wdiere  the 
intention  may  have  been  quite  different.^  The  intention  of 
the  insolvent  purchaser  not  to  accept,  was  held  to  control, 
although  such  intent  was  never  disclosed  until  after  notice  of 
stoppage* 

'  Wliiteliead?).  Anderson,  9  M.  &  W.,  518;  see  also,  Calahun  y.  Babcock, 
21  O.  St.,  281;  Giiilfonl  v.  Smith,  :{()  Vt.,  49;  B!ackb.  on  Sales,  259;  Benj.  on 
Sales  §  855 ;  Jackson  v.  Nichol,  5  Bing.  N.  C,  508. 

-  Whitehead  v.  Anderson,  Supra. 

^Benj.  on  Sales,  ^  857,  an  I  cases  cited. 

4  James  v.  Griltin,  2  M.  ct  W.,  023;  Sc.;  also,  Morris  v.  Shryock,  50 
Miss.,  590. 


204  NOTICE    BY    WHICH    LIABILITIES    CREATED. 

§  4G6.  Consignee's  Possession  Ends  Transit.  —  Although  it  may 
be  true  that  possession  by  the  consignee  is  not  requisite  in  all 
cases,  to  defeat  the  vendor's  right  in  the  premises,  it  is  never- 
theless equal  1}'  true  that  when  such  possession  has  been  obtained 
by  the  purchaser,  in  good  faith,  the  transit  will  be  at  an  end. 
In  order  to  arrive  at  a  just  conclusion  as  to  the  conflicting 
rights  of  the  vendor  and  vendee,  it  will  be  necessary  to  follow 
the  inquiry  fartlier  than  our  present  purposes  require.  Al- 
though tlie  vendor's  right  of  stoppage  may  still  attach  after 
the  goods  have  passed  out  of  the  possession  of  the  carrier,  for 
the  reason  that  they  have  not  been  accepted  by  the  insolvent 
purchaser,  or  by  any  one  authorized  to  act  for  him.^  Still,  if 
the  carrier's  duties  with  respect  to  the  goods  have  ceased,  he 
cannot  be  affected  by  notice  or  countermand  from  the  vendor.^ 

§467.  Views  of  Chancellor  Kent. — In  giving  a  summary  of  the 
authorities  upon  this  subject,  and  the  deductions  to  be  drawn 
therefrom,  Chancellor  Kent  lays  it  down  as  a  general  rule 
that  where  the  carrier  is,  by  agreement,  converted  into  a  special 
agent  of  the  buyer,  the  transit  of  the  o-oods  terminates,  and 
with  it  the  right  of  stoppage.^ 

§  468.  Carriers  Discharged  by  Notice  at  End  of  Journey.  —  It 
would  follow,  therefore,  that  where  the  carrier  has  completed 
the  journe}^,  given  notice  of  the  arrival  of  the  goods,  and  by 
the  lapse  of  a  reasonable  time  for  their  removal,  has  ceased  to 
be  responsible  for  them  as  carrier,  whatever  may  be  the  rights 
of  the  vendor  Math  respect  thereto,  the  carrier  having  renounced 
all  control  over  them,  could  not  be  rendered  liable  to  the 
vendor,  b}^  a  failure  to  respect  his  notice  of  stoppage. 

^  469.  Storage  in  Government  AVarehouse. — A  common  instance 
of  the  termination  of  the  transit  so  far  as  it  affects  the  carriers 
while  it  still  continues   so  far  as  necessary  to  give  the  vendor 

'  Bolton  V.  Lane.  &  York.  R'way  Co.,  L.  R.  1  C.  P.  ,«! ;  So  L.  .J.  C.  P.  137 ; 
Grout  V.  Hill,  4  Gray,  :'(51 ;  Lane  v.  .Jackson,  5  Mass.,  157. 

■'  Isley  V.  Stubbs,  9  Mass.,  65 ;  Reynolds  v.  B.  &  M.  R.  R.,  43  N.  H.,  591 ; 
Cabeen  t.  Campbell,  30  Penn.  St.,  354;  Hoover  v.  Tibbits,  13  Wis.,  79; 
Harris  v.  Pratt,  17  N.  Y.,  249;  Sturtevaut  v.  Orser,  24,  N.  Y.,  538. 

3  2  Kent  Com.,  .545. 


TO    CARRIERS    AND    OTHER    BAILEES.  205 

the  ri^ht  to  perfect  his  lien  by  re-possessing  the  goods,  is 
where  they  have  arrived  at  the  port  or  place  of  destination 
and  are  stored  in  a  public  warehouse  in  default  of  payment  of 
the  duties.  In  such  event  they  are  not  considered  to  have 
come  to  tlie  possession  or  subject  to  the  control  of  the  vendee 
in  any  sense  that  would  deprive  the  vendor  of  his  right  of 
re-possession,  although  notice  to  the  carrier  would  not  be 
effectual,^  The  notice,  or  order  to  be  effective  for  the  purpose 
of  binding  the  carrier  or  other  bailee,  should  be  given  to  the 
person  actually  in  possession  pursuant  to  the  baihnent,  or  to 
his  employer.^ 

§  4Y0.  Notice  to  Employee.  —  Notice  to  the  owner  of  a  vessel, 
or  other  employer  of  the  one  who  has  immediate  custody  or 
control  of  the  goods,  in  order  to  be  binding,  must  be  given  in 
time  to  allow  of  the  transmission  of  orders  to  the  master  of 
the  vessel  or  other  employee,  before  the  termination  of  the 
transitus?  To  hold  otherwise  would  be  to  require  the  em- 
ployer, in  order  to  escape  liability,  to  perform  that  which  is 
impossible.  The  most  that  can  be  justly  required  in  any  case 
is  that  due  diligence  shall  be  used  to  communicate  with  the 
officer  or  servant  in  possession  of  the  goods. 

§471.  Responsibility  of  Carrier.  —  It  is  of  the  utmost  impor-' 
tance  that  the  carrier  act  circumspectly  upon  receipt  of  a  notice 
of  this  sort,  as  in  delivering  or  withholding  the  goods  after 
notice  from  the  vendor,  he  acts  at  his  peril.  ^  The  difficulties 
of  his  position  may  be  inextricably  complicated  by  the  contro- 
versy between  the  vendor  and  the  vendee.  To  deliver  the 
iroods  when  the  notice  is  sufficient  renders  him  liable  to  the 
vendor.  Should  he  wrongfully  withhold  them  from  the  ven- 
dee or  his  representatives,  he  becomes  responsible  for  his  con- 

^  2  Kent  Com.,  547 ;  Donath  v.  Broomhead,  7  Penn.  St.,  301 ;  Mottram  v. 
Heyer,  5  Den.,  629 ;  Nortliey  v.  Field,  2  Esp.,  613. 
"  Mottram  v.  Heyer,  Supra 
3  lb. ;  Whitehead  v.  Anderson,  9  M.  &  W..  518. 
*  The  Tigress,  32  L.  J.  Adm.,  97 ;  S.  C.  9  Jur.  N.  S.,  361. 


206  NOTICE    BY'    WHICH    LIABILITIES    CKExVTED. 

duct,  althouo-h  he  uiay  have  acted  on  the  belief  that  the  stoppage 
was  complete.^ 

§  472.  EflPect  of  Assigning  Bill  of  Lading.  —  The  additional 
obstacle  to  a  clear  understanding  of  his  duties  in  the  premises 
is  presented  in  the  fact  that  the  vendor's  right  of  stoppage 
maj  be  utterly  defeated  by  the  vendee.  When  the  goods  are 
represented  by  a  bill  of  lading,  this  is  regarded  as  such  a  sym- 
bol of  property,  in  tlie  hands  of  the  vendee,  that  an  assign- 
ment thereof  by  him  to  an  innocent  purchaser  for  value,  will 
give  to  such  purchaser  a  right  to  the  property,  which  is  para- 
mount to  any  rights  the  vendor  may  have  to  reclaim  possession 
of  the  same  for  unpaid  purchase  money.'* 

§  473.  Must  be  to  Bona  Fide  Purchaser.  —  But  in  order  to  give 
such  a  transfer  of  a  bill  of  lading  by  the  insolvent  vendee,  the 
effect  of  cutting  off"  the  right  of  the  vendor  to  perfect  his  lien 
for  the  purchase  money  by  stoppage  in  transitu^  it  must  be 
assigned  to  one  who  comes  strictly  within  the  description  of 
assignees  whose  rights  are  protected,  not  only  because  of  the 
hona  fides  of  the  transaction,  in  the  sense  that  he  took,  with- 
out knowledge  or  information  of  the  rights  of  the  vendor,  but 
it  miist  be  for  a  valuable  consideration.^  Thus,  M'hereabill  of 
lading  of  goods  in  transit  was  transferred  by  the  purchaser  to 
a  creditor,  as  coUatei'al  security  for  past  indebtedness,  it  was 
held  by  Mr.  Justice  Bradley,  in  Lesassier  v.  The  Southwest- 
ern,'' that,  as  the  transferee  had  given  up  nothing  as  a  further 
consideration  for  the  transfer,  it  was  not  such  an  assignment  as 
would  preclude  the  seller  from  stopping  the  goods  for  the 
unpaid  purchase  money,  in  case  of  the  insolvency  of  the  pur- 
cliaser. 

1  Wilson  V.  AudertOtt,  1  B.  &  Ad.,  -139 ;  Batut  y.  Hartley,  L.  R.,  7  Q.  B.,  594 ; 
Blackburn  on  Sales,  266. 

"  Blanchard  v.  Page,  8  Gray.,  281 ;  Holbrook  y.  Vose,  4  L.  Beg.  ?s".  S..  60'3. 
And  such  assignee  may  maintain  an  action  against  the  seller  who  regains 
possession,  for  the  conversion  of  the  goods.  Bowls  v.  Deshler,  4  Abb.  App. 
Dec.  12. 

Lesassier  v.  The  Southwestern,  2  Woods,  35. 

*  Supra. 


TO    CAKRIERS    AND    OTHEK    BAILEES.  207 

§474.  End  of  Transit  by  Interception.  —  Although  the  ^/y^m- 
s'ltus  may  be  ended  by  the  purchaser  himself  before  the  arri- 
val of  the  goods  at  tlie  port  of  delivery,  by  meeting  them  at 
an  intermediate  point,  and  though  he  may  defeat  the  vendor's 
lien  by  assignment  of  the  bills  of  lading,  the  arrival  may  not 
be  anticipated,  nor  the  right  of  stoppage  defeated  by  the  gen- 
eral creditors  of  the  purchaser.  Accordingly,  where,  after  the 
arrival  of  the  goods,  they  were  placed  on  a  wharf  boat,  and  the 
purchaser,  being  aware  of  his  insolvency,  refused  to  accept 
them,  and  so  informed  the  vendor,  and  while  thus  situated,  the 
goods  were  attached  at  the  suit  of  a  creditor,  it  was  held  that 
the  vendor  might  exercise  his  right  of  stoppage,  notwithstand- 
ing the  attachment,'^ 

§  475.  Preferred  to  Judgment  Creditor.  — For  the  same  reasons 
that  the  claim  of  the  vendor,  for  unpaid  purchase  money  would 
be  preferred  to  that  of  the  attaching  creditor,  it  is  held  that  a 
seizure  by  an  officer  under  process  in  favor  of  a  judgment 
creditor,  will  not  defeat  the  right  of  stoppage  by  the  vendor.- 

§  476.  By  whom  Given.  —  An  important  matter  for  considera- 
tion in  connection  with  tlie  liability  which  may  be  created 
against  carriers  or  other  bailees,  by  notice  of  the  vendor's 
claim,  is  as  to  the  party  who  makes  the  claim  and  gives  the 
notice.  The  countermand  when  addressed  to  the  custodian  of 
the  property,  unless  coming  from  one  possessed  of  rights  in  the 
premises,  must  be  disregarded.  On  the  other  hand,  if  given  by 
one  recognized  by  the  law  as  entitled  to  re-possess  the  goods 
for  his  indemnity  by  means  of  a  stoppage  in  transitu,  such 
notice,  if  otherwise  sufficient,  cannot  be  ignored.  In  this 
respect,  as  in  every  other,  the  carrier  acts  at  his  peril.  The 
duty  of  the  carrier  would  be  sufficiently  plain  if  the  right 
existed  only  in  favor  of  actual  vendors;  but  it  has  been  repeat- 
edly held  that  it  may  be  exercised  with  the  same  effect  by  any 
one  who  stands  in  the  place  of  such  vendor,  with  respect  to  the 
demand  upon  tlie  purchaser. 

■  Morris  v.  Shryock,  .">()  Miss.,  .lilO. 
'KuckcTD.  Domivan,  l:'.  Kau.s  ,  251. 


208  NOTICE    BY    WHICH    LIABILITIES    CREATED. 

§477.  By  Factor.  —  It  was  accordingly  held  by  Lord  Ellen- 
BOKOUGH  in  Feise  v.  Wray/  that  the  right  existed  in  favor  of  a 
mere  factor.  In  that  case  the  consignor  had  bought  the 
goods  with  liis  own  funds  in  a  foreign  port,  on  account,  and 
by  order  of  his  principal  in  London,  to  whom  they  were 
shipped.  The  principal  becoming  bankrupt  during  the  transit, 
and  the  assignee  demanding  the  possession  of  the  goods  in  the 
interest  of  the  estate,  contended  that  the  factor  who  purchased 
the  goods,  did  so  in  his  capacity  of  agent;  but  the  court  in  the 
interest  of  justice  chose  to  consider  him  as  a  vendor,  who  sold 
the  goods  to  his  London  correspondent  at  cost,  plus  his  com- 
missions.^ 

§  47S.  By  Party  to  Contract  Respecting  the  Goods.  —  So  where 
the  vendor  has  merely  an  interest  in  an  executory  contract 
with  respect  to  the  goods  in  transit,  as  in  the  case  of  Jenkins 
V,  Usborne,^  where  the  plaintiff  sold  a  portion  of  a  cargo,  the 
property  in  which  had  not  yet  vested  in  him,  but  he  merely 
would  have  a  right  to  the  designated  portion  after  it  was  sepa- 
rated, this  interest  was  held  to  be  such  that  on  the  insolvency 
of  his  vendee,  he  was  entitled  to  stop  the  delivery  for  the 
unpaid  purchase  money, 

§  479.  By  Ow^ner's  Guarantor.  —  The  recent  case  of  Gossler 
V.  Schepeler,^  was  where  the  goods  were  purchased  in  a  foreign 
port  upon  the  faith  of  a  letter  of  credit  from  the  party  claim- 
ing the  right  of  stoppage.  The  purchaser  had  agreed  to  trans- 
fer the  bills  of  lading  to  his  guarantor,  as  security,  but  failed 
to  comply  with  his  contract.  During  the  transit  the  purchaser 
became  bankrupt,  and  the  exercise  of  the  right  by  the  guar- 
antor was  allowed  by  the  court,  as  against  the  claim  of  the 
assignee  in  bankruptcy  for  the  possession  of  the  goods,  upon 

1  3  East,  93. 

"Seymour  i).  Newton,  105  Mass.,  272;  Newhall  r.  Vargas,  13  Me.,  93; 
Gossler  ij.  Schepeler,  5  Daly,  (N.  Y.),  476;  Fraschieris  v.  Henriques,  6  Abb., 
(N.  S.),  251 ;  Snee  v.  Prescot,  1  Atk.,  245 ;  The  Tigress,  32  L.  J.,  Adm.,  97 ;  EI- 
lershaw  v.  Magniac,  6  Excb.,  570. 

«7M.i:G.,  678. 

'  Supra. 


TO    CARRIERS    AND    OTHER    BAILEES.  209 

the  ground  that  he  had  paid  the  purchase  price,  and  was 
thereby  subrogated  to  all  the  rights  of  an  original  vendor.  In 
deciding  this  case,  one  of  tlie  principal  authorities  cited  in 
support  of  the  right  of  the  party  assuming  the  payment  of 
the  purchase  money,  to  stoppage  for  his  own  security,  is  Ben- 
jainin  on  Sales.^  It  is  there  laid  down  that  such  right  could 
be  claimed  under  the  provisions  of  the  statute,'  by  a  surety 
who  had  paid  the  vendor;  but  a  case  is  cited  prior  to  the  stat- 
ute,^ in  which  it  was  decided  that  a  mere  surety  for  the  buyer 
had  no  right  to  stop  in  ti'ansitu. 

§  480.  By  Agent.  —  Stoppage  may  be  made  by  an  agent,  on 
behalf  of  the  principal,  whether  he  has  been  thereto  speciaHy 
authorized,  or  acts  pursuant  to  general  authority  derived  from 
the  natui-e  and  scope  of  his  employment.*  And  such  authority, 
where  it  is  special,  may  be  derived  from  subsequent  ratifica- 
tion, as  well  as  from  prior  appointment,^  subject,  however,  to 
the  provision  that  in  order  to  operate  as  a  justification  of  the 
carrier's  act  in  withholding  the  goods  from  the  purchaser,  or 
to  render  him  liable  for  not  respecting  the  countermand,  such 
subsequent  approval  must  be  prior  to  the  termination  of  the 
transitus.^ 

'^•§830,831. 
219&20  Vict.  C.  97. 
'Skiffen  «.  Wray,  6  East,  371. 

*  Reynolds  v.  B.  &  M.  R.  R.,  43  N.  H.,  580;  Bell  v.  Moss,  5  Whart.,  189. 
Whitehead  v.  Anderson,  9  M,&  W.,  518, 

5 Hutchings  t.  Nunes,  1  Moore,  P.  C.  N.  S.,  243. 

•  Bird  V.  Brown,  4  Exch.,  786. 

14 


210  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED- 


CHAPTER  lY. 

Notice  by  which  Liability  is  ExTiNamsHED  or  Modified. 

I.  DissoiAiTiox  OF  Partnership. 
II.  Notice  Limiting  the  Liability  of  Common  Carriers  and  other 

Bailees. 
III.  Landlord  and  Tenant. 

I.  D[6S(H.uTioN  OF  Partnership. 

§481.  General  Nature  of  Partuership. 
483    Range  of  Inquiry. 

483.  Reason  for  requiring  Notice  of  Dissolution. 

484.  Personal  Notice  Oral  or  Written. 

485.  Knowledge  Derived  from  Circumstances. 

486.  Use  of  Name  after  Retirement. 

487.  Effect  of  Legal  Notice  of  Dissolution. 

488.  Corporation  Using  Partnership  Name. 

489.  Notice  Unnecessary  to  those  Ignorant  of  the  Partnership. 

490.  Illustration  of  Abo\-e. 

491.  General  Knowledge  of  P;.rtnership,  SuflScient. 

492.  Dormant  Partner. 

493.  Dormant  with  Respect  to  Particular  Transaction. 

494.  Must  be  Unknown. 

495.  Known  to  Some.  Unknown  to  Others. 

496.  Dissolution  by  Dea;h. 

497.  Dissolution  by  Bankruptcy. 

498.  Etfect  upon  Surviving  or  Solvent  Partners. 

499.  Manner  of  Giving  Notice. 

500.  Communication  Ijy  Mail. 

501.  Not  Conclusive  Unless  Received. 

502.  To  Agent  or  Ser\-ant. 

503.  Altering  Signs,  Etc. 

504.  Public  Advertisement. 

505.  Publication  Insufficient. 

506.  Reading  Paper  not  Conclusive. 

507.  Inference  Drawn  from  Publication. 


DISSOLUTION    OF    PARTNERSHIP.  211 

508.  Wliat  are  Prior  Dealings. 

509.  Discounting  Notes. 

510.  Honoring  Successive  Drafts. 

511.  Renewal  of  Accommodation  Paper. 

512.  Single  Purchase. 

513.  Notice  to  New  Customers. 

514.  Time  of  Publication. 

515.  Publication  in  Newspaper. 

516.  Where  Published. 

517.  Selection  of  Newspaper. 

518.  Manner  Open  to  Inquiry. 

519.  English  and  American  Doctrine. 

520.  Liability  of  Retiring  Partner  Affected  by  Subsequent  Conduct. 

521.  Estoppel. 

522.  Example  of  New  Customer  Entitled  to  Actual  Notice. 

523.  Knowledge  of  Expiration  of  Pax-tnership. 

524.  Notice  of  Limited  Partnership. 

525.  Special  Partnership. 

526.  Restrictions  and  Limitations. 

527.  Assumption  of  Excess  of  Authority  by  one  Partner. 

528.  Misapplication  of  Funds. 

529.  Effect  of  Dissolution  upon  Guarantor. 

530.  Onus  Probandi. 

§  481.  General  Nature  of  Partner.ship.  —  The  obligations  aris- 
ing out  of  the  relation  of  partnership  are  of  a  very  pecnliar 
character.  This  relation  involves  a  greater  degree  of  mutual 
confidence  than  any  other  known  to  the  law,  which  is  formed 
merely  for  business  purposes.  Each  member  of  a  partnershij) 
may  be  said  to  hold  all  that  he  has,  absolutely  at  the  mercy  of 
each  of  his  co-partners,  limited  onlj^  by  the  extent  of  the  credit 
which  the  partnership  can  command.  For  each  one  may,  by 
his  contracts,  bind  not  only  the  entire  firm  property,  but,  in 
the  name  of  the  partnership,  may  incur  liabilities  for  which 
each  of  the  others,  as  well  as  himself,  will  be  individually  lia- 
ble.^ These  liabilities,  once  incurred,  will  continue  until  dis- 
charged, notwithstanding  the  subsequent  dissolution  of  part- 
nership.'^    Bat  though  the  liabilities  assumed  in  the   name  ot 

'  Story  on  Part.,  i^  126-65. 

*  Id.,  §  334;  Aiken  v.  Thompson,  43  la.,  006. 


212  NOTICE    BY    WHICH    LIABILITIKS    EXTINGUISHED. 

the  partnership  cannot  be  shaken  off  bv  any  one  of  such  part- 
ners merely  by  dissolving  his  business  relations  with  the  oth- 
ers, he  may,  by  proper  notice,  modify  his  liability  for  future 
transactions,  or  escape  absolutely  all  responsibility  for  the 
contracts  to  be  entered  into  in  the  name  of  the  partnership 
after  the  severance  of  his  connection  therewith.^ 

§  482.  Range  of  Inquiry.  —  Our  inquiries  will  not  be  confined 
strictly  to  notice  of  dissolution,  but  will  extend  to  notice  of 
every  kind  that  has  for  its  purpose  the  limitation,  qualification, 
or  termination  of  the  liability  of  co-partners  for  further  trans- 
actions of  the  firm  of  which  they  are  members,  whether  such 
liability  be  general  or  special. 

^483.  Reason  for  Requiring  Notice  of  Dissolution.  —  The  reasons 
are  obvious  for  requiring  notice  of  the  dissolution  of  the  part- 
nership, in  order  to  terminate  the  liability  of  the  retiring 
member  on  account  of  partnership  debts  contracted  subsequent 
to  his  retirement.  Having  held  himself  out  to  the  M'orld  as  a 
partner  in  the  past,  he  has  thereby  authorized  others  to  think 
him  what  he  represents  himself  to  be.  He  has,  by  his  own 
act,  given  the  partnership  the  credit  of  his  name,  and  so  long 
as  such  partnership  exists,  those  who  know  it  will  be  presumed 
to  know  it  as  originally  constituted,  until  informed  of  a  change 
in  its  membership.  To  hold  otherwise,  would  cast  upon  those 
who  have  dealings  with  a  partnership,  the  unusual  and  onerous 
duty  of  taking  cognizance  of  the  interior  working  of  the  affairs 
of  a  concern,  which  the  members  fail  to  disclose.  It  would 
shift  the  obligation  of  diligence  from  the  party  who  is  not  only 
primarily  interested,  but  who  is  so  peculiarly  situated  as  to 
incur  no  hazard  except  from  his  own  negligence,  to  him  M'ho 
is  only  secondarily  interested,  and  M'ho  might  exercise  extraor- 
dinary diligence  without  coming  to  a  knowledge  of  the  fact. 
Even  when  there  was  no  fraud  in  the  concealment,  it  would 
reverse  the  rule   that,  as   between   two  innocent  persons,  he 

'  Pars,  on  Part.,  411. 


DISSOLUTION    OF    PARTNERSHIP.  213 

should  suffer  whose  act  or  omission  was  the  cause  of  the 
iiijury.' 

§  -1:84.  Personal  Notice  Oral  or  Written.  —  Where  the  notice  to 
a  subsequent  creditor  is  actual,  in  the  narrow  sense  that  it  is 
personally  communicated  to  him,  it  may  be  either  oral  or 
^written,  and  would  probably  be  sufficient  if  coming  from  any 
one  with  apparent  knowledge  of  the  fact. 

§  485.  Knowledge  Deriveil  from  Circinistances.  —  The  object  of 
notice  being  to  convey  knowledge  of  the  dissolution,  any  cir- 
cumstance b}^  which  such  knowledge  may  be  brouglit  home  to 
the  subsequent  creditor  of  the  firm  will,  in  general,  obviate 
the  necessity  of  formal  notice."  And  the  question  of  knowl- 
edge is  one  of  fact,  and  not  of  law.^ 

§  4:86.  Use  of  Name  after  Retirement.  —  The  only  event  in 
which  a  subsequent  creditor,  with  knowledge  of  a  prior  disso- 
lution, may  hold  the  retiring  partner,  is  where,  notwithstand- 
ing the  retirement  of  the  partner,  so  far  as  his  interest  is 
concerned,  he  permits  his  name  to  be  used  as  a  member,  for  the 
purpose  of  giving  the  partnership  the  credit  of  his  name,  thus 
continuing  his  liability.  Where,  in  case  of  such  a  dissolution, 
the  retiring  partner  merely  permits  the  use  of  his  name  in  con- 
nection with  future  business  of  the  partnership,  by  silent  acqui- 
escence, without  anj^  express  agreement  to  that  effect,  it  has 
been  lield  that  those  dealing  with  the  firm,  witli  knowledge  of 
the  formal  dissolution  of  the  partnership  relation,  knowing  of 
the  continued  use  of  the  name  of  such  retiring  partner,  have  a 
right  to  rely  upon  that  as  an  indication  that  he  consents  to 
remain  liable  for  the  future  contracts  of  the  partnership.^ 

'  Tombeckbee  Bank  v.  Dumell,  5  Mason,  56;  Lansing  v.  Gaine,  S  Johns., 
300;  Le  Roy  o.  Johnson,  2  Pet.,  U)8;  Brown  v.  Leonard,  2  Chitty,  120;  Par- 
kin V.  Carruthors,  3  Es]i ,  34(5;  Newsome  v.  Coles,  2  Camp.,  617;  Dolman  v. 
Orchard,  2  Car.  &  P ,  104;  Zollar  i\  Janviin,  47  N.  H.,  324. 

■'  Irby  t.  Vining,  3  M.-CJ  )rd,  3T!) ;  Hart  w.  Al.-xander,  3  >[.  &  \V.,  484 ;  Pren- 
tiss v.  Sinclair,  5  Yt.,  14!). 

'  Delorrl  v.  Reynolds,  3fi  Pcnn.  St.,  325. 

♦Emmet  1).  Butler,  7  Taint..  .•)()!);  Muirord  ;-.  r.rillin.  1  Post.  &  P.,  145; 
Evans  v.  Drunimond,  1  Ksp..  80;  Mcwnuueh  o.  Clay,  14  Eat,  239;  Ketcham 


214  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

§487.  Effect  of  Legal  Notice  of  Dissolution.  —  It  has,  how- 
ever, been  decided  elsewhere  that  cue  having  knowledge  of  the 
prior  connection  of  the  retired  partner  with  the  firm,  but  who 
has  no  actual  notice  or  knowledge  of  the  dissolution,  of  which, 
however,  such  notice  as  is  prescribed  bj  law  has  been  given,  is 
not  warranted  in  giving  credit  to  the  new  firm  upon  the  faith  of 
the  continued  use  of  the  name  of  the  late  member  of  the  part- 
nership, merely  because  the  latter  has  taken  no  positive 
measures  to  prevent  its  continued  employment  in  that  con- 
nection.^ This  decision  is  grounded  upon  the  reason  that  as 
the  retiring  member  of  the  partnership,  upon  its  dissolution 
has  resorted  to  all  the  precautions  pointed  out  by  the  law  as 
requisite  to  convey  tlie  necessary  information  to  creditors  of 
that  class,  he  could  not  be  accused  of  negligence,  nor  would 
a  fraudulent  intent  be  imputed  to  him  by  the  court,  merely 
because  he  did  not  seek  by  a  bill  in  equity  to  enjoin  the  further 
use  of  his  name  in  connection  with  the  business  from  which 
he  had  publicly  severed  his  connection. 

§488.  Corpiu-ation  Using  Partnership  Name.  — But  where  a 
partnership  was  dissolved  by  the  organization  of  its  constitu- 
ent members  into  a  private  corporation,  and  conveying  the 
partnership  property  to  the  corporate  body,  and  the  mem- 
bers of  the  partnership  allowed  the  business  to  be  still  con- 
ducted in  the  old  name,  they  were  justly  held  liable  as  partners 
to  one  who  had  no  notice  of  the  dissolution.^ 

§  489.  Notice  Unnecessary  to  those  Ignorant  of  the  Partnership, 
—  It  cannot  be  said  that  upon  the  dissolution  of  a  business 
partnership,  the  retiring  members  will  in  every  instance  be 
held  liable  for  the  future  contracts  or  acts  of  the  firm,  where 
notice  of  the  dissolution  is  neglected.  Whether  such  liability 
will  be  incurred  by  them  depends  in  a  great  measure  upon  the 
relations  between  the  new  creditor  and  the  old  partnership. 
It  would  be  going  an  unreasonable  length  to  hold  that,  merely 

•0.  Clark,  6  Johns.,  144 ;  Amidowu  v.  Oisjiood,  34  Vt.,  278 ;  Brown  v.  Leonard,  2 
Cliit,  120;  Howe  ©.Thayer,  17  Pick.,  1)1. 

'  Newsome  v.  Coles,  2  Camp.,  017. 

'•'Goddard  t.  Pratt,  Kj  Pick.,  412. 


DISSOLUTION    OF    PAKTNEKSHIP.  215 

because  notice  of  the  late  partner's  retirement  is  not  given,  he 
shall  be  held  liable  to  those  who  have  subsequent  dealings 
with  the  firm,  in  ignorance,  not  only  of  the  dissolution,  but 
also  of  the  fact  that  the  partnership  wliicli  has  been  dissolved, 
ever  had  an  existence.  It  has  therefore  been  held  that  in  order 
to  render  a  retired  partner  liable  to  those  having  subsequent 
dealings  with  his  successors  in  business,  three  facts  must  con- 
cur: 1.  That  the  party  seeking  to  hold  him  must  have  known 
at  the  time  he  dealt  with  the  firm,  of  the  former  partnership. 
2.  That  he  was  ignorant  of  the  dissolution,  and  3.  That  his 
dealings  with  the  partnership  were  had  supposing  that  he  was 
contracting  with  the  retired  pai'tner  as  well  as  his  successors, 
and  in  reliance  upon  their  joint  liability.^  It  was  also  held 
that  general  notoriety  with  respect  to  the  existence  of  the 
partnership  which  had  been  dissolved  without  notice  would  not 
be  sufficient  to  supply  the  place  of  knowledge.  The  trans- 
action, to  entitle  the  creditor  to  enforce  his  renied}^  against  the 
retired  partner,  jointly  with  those  continuing  the  business, 
must  be,  on  the  part  of  the  creditor  based  upon  his  faith  in 
the  solvency  and  standing  of  the  party  he  seeks  to  hold.  He 
could  not  be  presumed  to  have  acted  upon  such  faith  unless 
there  was  some  antecedent  knowledge  of  the  fact  noon  which 
he  is  supposed  to  rely.^ 

§490.  Illustration  of  Above. — When,  therefore  a  firm  which 
remains  after  the  dissolution,  as  the  successor  of  the  partner- 
ship dissolved,  whether  carrying  on  business  under  the  same, 
or  a  different  name,  has  dealings  with  a  stranger,  who  has  had 
no  dealings  with  the  former  partnership,  and  who  has  no 
knowledge  of  such  partnership,  notice  of  any  kind  is  unnec- 
essary in  order  to  enable  the  retiring  members  of  the  old  con- 
cern to  escape  liabili  by  for  such  subsequent  contracts;  but  it 
would  be  otherwise  held  where  the  party  had  knowledge  ot 
the  partnership,  but  not  of  its  dissolution.^ 

'  Pratt  V.  Page,  32  Vt.,  13. 

'  Ibid. 
Story  on  Part.,  ^  160;  Chambfrlain  v.   Dow,  10  Micli.,  319;  Warren  r. 
Ball,  y,li  III.,  70;  Evans  v.  Drummond,  4  Esji.,  Hi);    Newinarch  v.  Clay,  14 
East ,  230. 


216  NOTICE    BY    WIIIOH    LIABILITIES    EXTINGUISHED. 

§401.  General  Knowledge  of  Partnership  Sufficient. — Bank  of 
Brooklyn  v.  McChesney/  was  where  the  liability  incurred  in 
the  name  of  the  partnership  after  formal  dissolution,  was  by  a 
promissory  note  made  in  the  name  of  the  lirm,  by  one  of  the 
partners  for  the  accommodation  of  a  third  person.  The  note 
was  taken  in  good  faith  by  one  who  had  had  no  prior  dealings 
with  the  partnership,  but  who  knew  that  there  was  such  a 
firm,  and  had  never  received  any  information  of  its  disso- 
lution. There  being  neither  actual  nor  constructive  notice  that 
the  partnership  had  been  dissolved  when  the  note  was  taken, 
it  was  held  that  the  retiring  partners  were  not  released  from 
their  liability  by  such  dissolution. 

§  492.  Dormant  Partner.  —  A  dormant  partner  may  dissolve 
his  connection  with  the  partnership,  and  in  so  doing  escape 
all  liability  on  account  of  the  future  transactions  of  the  firm, 
whether  with  new  or  old  customers,  by  giving  notice  ot 
such  dissolution.'  The  reasons  for  excepting  a  partner  of  this 
kind  from  the  general  rule  are,  that  as  his  connection  with  the 
firm  is  unknown,  his  liabilitj^  could  not  be  said  to  depend  upon 
the  fact  that  the  credit  was  given  to  him.  His  liability  arises 
from  the  fact  that  he  shares  the  pi-ofits.  It  is  created  by  opera- 
tion of  law,  irrespective  of  the  intention  of  the  parties.  When 
his  interest  in  the  profits  ceases,  the  reason  for  his  liability  is  re- 
moved, and  though  he  may  continue  to  be  liable  for  the  obliga- 
tions incurred  by  the  partnership  during  his  connection  with 
it,  he  will  not  be  affected  by  those  growing  out  of  future  trans- 
actions.^ 

§  493.  Donnaut  with  Respect  to  Particular  Transaction.  —  It 
was  according!}'  held  that  the  attorney  whose  partner  was 
employed  in  the  management  of  a  suit,  being  a  dormant  part- 
ner with  respect  to  that  particular  business,  would  not  be 
liable  for  funds  coming  to  the  hands  of  his  partner  as  the  fruits 

'  20  N.  Y.,  240. 

■^  Pars,  on  Part.,  497. 

^  Story  on  Part.,  §  150,  and  authorities  there  cited.  See  .'il so  Warren  ». 
Ball,  37  111.,  76;  Newmarch  v.  Clay,  14  East,  239;  Kennedy  v.  Bohannoa, 
11  B.  Mon.,  118;  Scott  v.  Colmesnil,  7  .T.  ,T.  Marsh.,  416. 


DISSOLUTION    OF    rAUTNEKSIlII'.  217 

of  such  litigation,  after  tlie  partuersliip  between  tlieiu  had  been 
dissolved,  although  notice  of  such  dissolution  was  never  given. ^ 

§494.  Must  be  Unknown.  —  But  in  order  to  constitute  one  a 
dormant  partner,  so  that  he  may  escape  liability  for  the  future 
transactions  of  the  firm,  by  dissolution  without  notice,  it  is  not 
sufficient  that  his  name  does  not  appear  in  that  of  the  firm. 
To  be  a  dormant  partner,  he  must  not  only  be  silent  in  the 
sense  that  liis  connection  with  the  partnership  is  not  adver- 
tised, but  such  connection  must  be  unknown.  It  is,  therefore, 
not  sucli  concealment  of  his  interest  as  will  entitle  him  to  the 
immunities  of  a  dormant  partnei'ship,  when  instead  of  his 
name  as  a  member  of  the  firm,  the  usual  substitute  "Co.,"  is 
employed,^  It  was  also  held  that  where  the  firm  was  styled 
E..  M.  &  Co.,  the  mere  fact  that  the  one  dealing  with  the 
partnership  was  ignorant  of  the  name  of  R.  M's  Partner, 
would  not  render  such  partner  dormant  within  the  meaning 
of  the  law,  and  with  reference  to  subsequent  dealings  with 
such  party .^ 

§  495.  Known  to  Some,  Unknown  to  Others.  —  One  may  be  a 
dormant  partner  with  respect  to  certain  persons  with  whom 
the  firm  has  dealings,  and  stand  upon  an  entirely  different 
footing  towards  others.  Ilis  connection  with  the  partnershij) 
may  be  concealed  from  a  portion  of  the  public,  while  others 
are  fully  cognizant  of  his  interest  and  consequent  responsibil- 
ity. And  the  fitct  that  the  interest  of  a  former  dormant 
partner  was  known  to  one  person  with  whom  the  firm  has 
dealings  subsequent  to  the  dissolution,  cannot  be  rendered 
available  to  create  a  liability  against  such  retired  j^artner,  and 
in  favor  of  one  who  was  ignorant  of  such  partnership  until  he 
had  heard  of  its  dissolution.'* 

§  496.  Dissolution  by  Deatli.  —  It  is  prol)ably  well  settled  that 
when  the  partnership  is  dissolved  by  the  death  of  one  of  the 

'  Ayranlt  v.  Cliamlicrliu.  2'!  Burl).,  83. 

«  Dcford  «.  Roynolds,  W   Penri.  St.,  325 ;    Edwards  ?;.  McFall,  5  La.   An., 
107;  Magill  v.  Mcrrie,  5  B.  Moa  ,  1(58;  Deeriug  v.  Flaudurs,  4!)  N.  H.,  225. 
•*Defordy.  Reynold.s,  tiupra. 
*  Cregler  ?;.  Durham,  9  lud.,  375. 


218  NOTICE    BY    WillOir    Ll.VB[L[TIKS    EXTING-UISII  ED. 

partners,  notice  of  such  dissolution  is  not  necessary  in  order  to 
exempt  his  estate  from  liability  for  the  future  obli<rations  of 
the  partnership.^  The  only  known  exception  to  this  rule,  is 
where  a  surviving  partner  represents  the  estate  of  the  deceased 
partner  as  executor.  It  has  been  lield  that  in  such  an  event, 
as  the  surviving  partner,  in  his  representative  capacity  has 
power  to  bind  the  estate  when  notice  of  the  death  is  omitted, 
such  notice  should  be  given  to  those  having  dealings  with  the 
firm.^ 

§  497.  Dissolution  by  Baiikruptcj-.  —  So  also  when  the  partner- 
ship is  dissolved  by  reason  of  the  bankruptcy  of  one  of  its 
members,  or,  as  it  has  been  styled,  his  "  quasi  death,"^  notice 
is  unnecessary  to  prevent  his  estate  from  becoming  liable  for  the 
future  obligations  of  the  firm,  for  the  combined  reasons  that 
the  adjudication  is  a  notorious  fact,  and  that  by  this  means  the 
law  deprives  the  bankrupt  of  all  means  of  satisfying  such  lia- 
bilities.^ 

§498.  Effect  upon  Snrviving  or  Solvent  Partner.s.  — As  to 
whether  the  surviving,  or  solvent  partners  would  be  absolved 
from  liability  for  obligations  incurred  in  the  name  of  tlie  part- 
nership, subserpient  to  dissolution  by  the  death  or  bankruptcy 
of  one  of  the  members  of  the  firm,  without  notice  express  or 
implied,  other  than  the  decease  or  adjudication,  much  would 
probably  depend  upon  their  own  conduct  with  respect  to  the 
subsequent  management  of  the  business  in  which  the  partner- 
ship was  engaged.  If  they  continued  to  carry  on  the  business, 
as  before,  each  of  the  surviving  or  solvent  members  of  the  firm 
would  be  bound  by  subsequent  contracts  made  in  the  name  of 
the  partnership  as  it  existed  prior  to  the  death  or  bankruptcy  in 
the  absence  of  notice  to  the  contrary.     This,  however,  would 

1  Washburn  t\  Goodman,  17  Pick..  51'J;  Webster  ».  Webster,  8  Swanst.. 
491 ;  Mm-ray  v.  Mumloi-d,  (J  Cow.,  411 ;  Burwell  v.  Maadeville,  2  How.,  U, 
S.,  560;  Cantield  ».  Hard,  0  Conn.,  180;  Parsons  on  Part.,  449 ;  Story  on 
Part.,  §  g  319,  386,  339. 

*  Vnlliamy  v.  Noble,  3  Meriv.,  592. 

'  Pars.  oQ  Part.,  474. 

^Franklin  v.  Brovvnlow,  14  Ves.,  550;  Thoinason  v.  Frere,  10  East,  418. 


DISSOLUTION    OF    PARTNERSHIP.  219 

be  as  well  for  the  reason  that  the  remaining  members  might  be 
regarded  as  having  entered  into  a  new  partnership,  under  the 
old  name,  as  because  of  a  failure  to  give  notice  of  the  dissolu- 
tion. Such  a  continuation  by  them  might  be  looked  upon  as 
notice  to  the  world  of  the  formation  of  a  new  firm,  and  their 
aldoption  of  the  name  of  the  old,  for  the  sake  of  preserving  to 
themselves  the  good  will,  and  those  who  had  actual  notice  of 
the  dissolution  might  extend  credit  to  them  under  their  former 
name,  relying  solely  upon  those  who  chose  to  continue  the 
business.  It  has  been  held,  however,  that  no  good  reason  exists 
for  requiring  notice  of  dissolution  by  death,  from  the  surviving 
partners,  in  order  to  exempt  either  of  them  from  liability  on 
account  of  future  unauthorized  contracts  in  the  name  of  the 
old  firm.'  This  was  an  action  on  a  promissory  note  given  by 
a  suriviving  partner  in  the  name  of  the  firm,  and  the  doctrine 
was  clearly  laid  down  by  Bigelow,  C  J.,  in  rendering  the 
opinion,  that  although  the  holder  had  taken  the  same  without 
knowledge  of  the  dissolution  by  death,  the  surviving  partner 
who  had  no  knowledge  of  the  giving  of  such  note  could  not  be 
held  responsible  thereon  ;  and  for  good  and  sufficient  reasons, 
ably  set  forth  in  the  opinion,  and  supported  by  authority, 
gives  this  as  a  rule  applicable  to  all  contracts  made  under 
similar  circumstances.^ 

§  499.  Manner  of  Giving  Notice.  —  Where  notice  of  dissolution 
is  recpiisite  in  order  to  exempt  the  retiring  partner  from  liability 
on  future  obligations  of  the  lirni,  the  manner  of  giving  such 
notice  is  governed  to  a  considerable  extent  by  the  relations 
previously  existing  between  the  partnership  and  the  party 
asserting  the  claim  ;  but  actual  notice  will  be  sufficient  in  all 
cases,  whether  the  same  be  written  or  oral,  or  is  given  expressly 
l)y  the  retiring  partner,  or  is  derived  from  a  knowledge  of  cir- 
cumstances, pointing  directly  to  the  conclusion  that  such 
partnership  has  been  dissolved.' 

'  Marlett  v  Jackman,  3  Allen,  287. 

'Robb.  V.  MvKlge,  14  Gray,  5.34;  Lange  c.  Kennedy,  20  Wis.,  279;  Davis 
V.  Keyes,  .38  N.  Y.,  94;  Young  v.  Tibbitts,  32  Wis.,  79;  But  see  Ransom  v. 
Loyless,  49  Ga.,  471 ;  Pars,  on  Part.,  411. 


220  NOTICE    BY    WHICH    LIABILITIES    EVIINGUISHED. 

§  500.  Commuiiication  by  31{iil.  —  The  method  in  nearly  all 
cases  found  to  be  most  practicable  and  efficacious  for  the  pur- 
pose of  discharging  the  retiring  partner  from  future  obligations, 
is  by  addressing  to  the  party  to  be  notified  a  written  communi- 
cation informing  him  of  the  fact  of  dissolution.  Proof  of 
notice  sent  to  and  received  by  him,  through  the  mails,  or  served 
upon  liim  personally,  will  be  conclusive  upon  him  for  all  time.^ 

§501.  Not  Coiichisive  Unless  Received.  —  But  it  has  been  held 
that  mere  proof  of  the  sending  of  a  wTitten  notice  by  mail, 
will  not  be  sufficient  to  charge  the  party  to  whom  it  is  addressed 
with  knowledge  of  the  altered  relations  of  the  partners.  This 
manner  of  service  is  there  held  to  be  restricted  in  its  conclus- 
ive effect  to  cases  of  notice  of  the  dishonor  of  commercial 
paper.  It  is  admitted,  however,  that  the  mailing  of  a  written 
notice  of  dissolution  to  one  having  former  dealing  with  the 
partnership  would  be  a  step  in  the  direction  of  actual  notice, 
and  slight  corroborative  evidence  would  warrant  the  inference 
that  such  notice  was  received  and  the  party  duly  advised  of 
the  change  of  firm  ;  but  this  inference  is  regarded  strictly  as 
one  of  fact  and  not  of  law.^ 

§  502.  To  Agent  or  Servant.  —  Howsoever  indulgent  the  courts 
may  be  in  the  matter  of  giving  notice  of  dissolution,  with 
reference  to  the  means  employed,  it  is  nevertheless  required 
where  actual  notice  is  relied  on,  that  it  shall  be  communicated 
to  the  party  to  be  affected  thereby.  It  will  not  be  sufficient 
if  communicated  to  a  mere  servant  or  employee,  unless  from  the 
nature  of  his  employment,  his  agency  extends  to  the  particular 
transaction  to  be  affected  by  the  notice.  Accordingly  where 
the  retired  partner  went  to  the  place  of  business  of  one  with 
whom  the  firm  had  had  prior  dealings,  and  on  being  accosted 
by  a  salesman,  informed  such  salesman  that  he  had  not  come 
to  purchase  but  to  inform  the  house  that  the  partnership  there- 
tofore existing  had  been  dissolved,  it  was  held  that  this  was 
not  sufficient  to  charge  the  employers  of  such  salesman  with 

'  Kenney  v.  Altvater,  77  Peau.  St.,  :J4. 


DISSOLUTION    OF    PARTNEKSHIP.  221 

actual  notice  of  tlie  retirement  of  such  partner ;  so  as  to  ex- 
onerate him  from  liability  on  a  note  subsequently  given  bj 
his  successor  in  the  name  of  the  firm.  A  failure  to  show  that 
the  fact  was  communicated  by  the  salesman  to  his  employer, 
left  it  incumbent  upon  the  party  seeking  to  avail  himself  of 
such  notice,  to  prove  that  the  authority  of  the  agent  extended 
to  the  acceptance  of  notice  of  dissolution.^ 

§  503.  Altering  Signs,  etc.  —  Another  method  which  is  equally 
binding  upon  those  cognizant  of  its  adoption,  and  which  is 
even  more  general  than  that  of  personal  notice,  is  by  altering 
the  name  of  the  firm  on  the  signs  and  in  all  the  correspondence 
carried  on  with  their  customers,  together  with  a  public  adver- 
tisement of  tlie  dissolution,  in  one  or  more  public  newspapers.^ 
One  having  dealings  with  the  new  firm  by  means  of  epistolary 
correspondence,  where  the  letters  exchanged  would  show  upon 
their  face  that  one  of  the  former  members  had  retired  from 
the  concern,  would  seem  to  be  estopped  from  claiming  that  in 
so  dealing  he  relied  upon  the  responsibility  of  such  retired 
partner.^ 

§  504.  Public  Advertisement.  —  The  authorities  are  not  in 
entire  accord  as  to  the  effect  of  a  public  advertisement  ot 
dissolution,  as  notice  to  those  who  have  had  prior  dealings 
with  the  partnership.  It  seems  to  be  generally  agreed  that 
the  publication  of  such  notice  will  not  affect  them  unless  it 
appears  that  they  were  in  the  habit  of  receiving  and  reading 
the  papers  in  which  the  notices  appear.^  The  weight  of  author- 
ity, however,  goes  farther  in  restricting  the  operation  of  such 
published  notice,  holding  that  it  will  not  be  available  against 
one  who  had  had  prior  dealings  with  the  partnership,  unless  it 
is  shown  that  he  has  actually  read  the  notice  as  published.^ 

'  Stewart  fl.  Sonneborn,  49  Ala.,  178. 

'  Jenkins  v.  Blizard,  1  Stark.,  418. 

'Pars.,  on  Part.,  411. 

■•Galway  v.  Matbew,  1  Camp.,  403;  S.  C,  10  East,  264. 

'Hutchins  tj.  Hudson,  8  Hinnpli.,  42();  Ilutchins  v.  Bank  of  Tenn.,  Id., 
418;  Little  v.  Clarke,  36  Penn.  St.,  114;  Boyd  v.  McCann,  10  Md.,  118; 
Simonds  v.  Strong,  24  Vt.,  642;  Shurlds  v.  Tilson,  2  McLean,  458. 


222  NOTICE    BY    WIIIOH    LIABILITIES    EXTINGUISHED. 

§  505.  Publication  Insufficient.  —  It  was  accoi'dingly  held  in 
Lyon  V.  Johnson/  that  the  fact  of  notice  of  dissolution  being 
published  in  a  paper  circulated  where  the  business  of  the  firm, 
and  also  that  of  the  party  with  whom  the  dealings  were  had, 
was  carried  on  and  such  paper  was  taken  by  the  party  giving 
such  credit,  together  with  the  further  fact  that  the  notice 
was  printed  directly  adjoining  the  advertisement  of  the  dealer, 
would  not  raise  a  presumption  sufficiently  strong  to  overcome 
the  fact  that  such  dealer  had  no  actual  notice.  In  other  words, 
it  was  not  sufficient  of  itself  to  constitute  notice  to  such 
dealer.  It  ^s'as  here  admitted,  however,  that  these  facts,  in 
conjunction  with  the  lapse  of  time,  and  other  circumstances, 
might  be  regarded  as  evidence  tending  to  prove  the  ultimate 
fact.  But  upon  the  other  hand,  the  circumstance  that  the 
credit  was  given  to  the  old  firm,  would  have  a  tendency  to 
sliow  his  want  of  knowledge  of  the  altered  relations  of  the 
members  of  the  partnership.' 

§  506.  Reading  Papers  not  Conclusive.  — There  seems  to  be  no 
doubt  that  the  mere  fact  that  the  prior  dealer  subscribes  for 
and  reads  the  paper  containing  the  notice,  will  not  raise  the 
legal  inference  of  actual  notice.^  And  although  it  would  not 
be  proper  to  reject  evidence  of  such  publication  and  the  taking 
and  reading  of  the  paper  by  the  dealer,  still  the  jury  should 
be  instructed  that  the  mere  taking  of  the  paper  was  not  of 
itself  actual  notice.* 

§  507.  Inference  Drawn  from  Publication.  —  Although  the  pub- 
lication  of  notice  can  not,  as  an  inference  of  law,  be  taken  as 
actual  notice  of  dissolution  to  those  who  have  had  prior  deal- 
ings with  the  partnership,  it  has  been  held  that  such  a  publi- 
cation might  lay  the  foundation  for  an  inference  of  fact,  that 
such  notice  had  been  actually  given.     The  case  was  one  where 

'  28  Conn.,  1. 

^Site  also  as  to  effect  of  reading  the  paper  containing  the  notice.  Vernon 
V.  Manhatten  Co.,  22  Wend.,  18;i 

"Heilley  v.  Smith,  l-i  Li.  An.,  81 ;  Watkiuson  i\  Bank,  of  Pcuusylvauia,  4 
Whart.,  482;  Shurlds  o.  Tihon,  2  McLean,  458. 

*  AVatkinson  o.  Bank  of  Pennsylvania,  4  Whart.,  482. 


DISSOLUTION    OF    PARTNERSHIP.  223 

an  action  was  brought  on  a  note  given  in  the  name  of  D.  &  T., 
a  partnership  originally  composed  of  two  members,  but  which 
had  ceased  to  exist,  as  its  members  had  discontinued  the  busi- 
ness under  that  name,  prior  to  the  execution  of  the  note  by 
D.  The  style  and  constituency  of  the  firm  were  changed  by 
taking  in  a  new  member,  after  which  the  house  was  known  as 
"  D.  T.  &  C."  It  appeared  in  evidence  that  there  was  pub- 
lished at  the  request  of  the  new  firm,  in  a  newspaper,  printed 
and  circulated  in  tlie  place  where  the  business  was  conducted, 
the  following  notice:  "Change  of  Firm — It  will  be  seen  by 
our  advertising  column  that  D.  &  T.  have  taken  Mr.  D.  C.  C, 
into  partnership  in  the  marine  elevator  and  coal  business.  We 
congratulate  the  well-known  firm  on  the  accession  of  so  ener- 
getic a  business  man  as  Mr.  C.  Together  they  will  make  a 
strong  team."  It  was  also  testified  by  the  holder  of  the  note 
himself  that  he  was  in  the  habit  of  taking  and  reading  the 
paper  in  which  this  notice  appeared,  prior  to  the  date  of  the 
note.  The  court  held,  in  substance,  that  the  jury  might  have 
found  from  this  that  when  the  party  took  the  note,  he  had 
read  the  notice;  and  although  it  was  not  a  positive  statement 
from  the  parties  interested,  of  the  change  of  firm,  yet  it  was 
sufficient  to  put  an  ordinarily  prudent  and  cautious  man  upon 
inquiry,  leading  to  a  knowledge  of  such  change,  and  would 
therefore  justify  the  jury  in  inferring  that  the  note  was  taken 
with  actual  notice  or  knowledge  that  there  was  then  no  such 
firm  in  existence  as  that  in  the  name  of  which  the  instrument 
was  executed.^ 

8508.  What  are  Prior  Deallnnrs.  —  This  beinfj  the  rule  as  to 
those  who  have  had  prior  dealings  with  the  partnershij),  it 
becomes  a  question  of  some  importance  as  to  what  amounts  to 
such  prior  dealings  as  would  entitle  them  to  actual  notice. 
Where  the  dealings  have  been  directly  between  the  party 
claiming  the  advantages  of  this  position,  and  the  partnership, 
as  by  selling  goods  to  the  firm,  or  making  advances  of  cash, 

»  Young  V.  Tibbitts,  32  Win.,  7!i. 


224  NOTICE    BY    WHICH    LIABILITIES    EXTINGL'ISUED. 

discountini^  paper  for  them,  or  any  similar  transaction  in 
which  the  parties  meet  or  confer  together,  in  the  capacities  of 
bargainor  and  bargainee,  there  can  be  no  difficnltj  in  reaching 
the  conclusion  that  thej  are  such  prior  dealings  as  would  enti- 
tle the  party  to  receive  actual  notice  of  such  dissolution.  But 
where  the  only  prior  dealing  consisted  in  discounting  a  note 
bearing  the  name  of  the  firm,  such  discount  being  made  for 
another  party,  this  was  held  not  to  amount  to  such  "  prior  deal- 
ings "  as  would  entitle  the  party  discounting  the  paper  to  be 
actually  notified  of  the  dissolution,  or  for  the  want  of  such 
notice  to  pursue  his  remedy  against  the  retiring  partner.^ 

§509.  Discounting  Notes. — But  where  one  of  the  members 
of  a  firm  took  a  note  to  a  bank  for  discount,  and  it  was  dis- 
counted on  the  faith  of  the  firm's  indorsement,  this  was  held 
such  a  prior  dealing  with  the  partnership  as  would  entitle  the 
bank  to  actual  notice  of  the  subsequent  dissolution,  in  order 
to  exonerate  the  retiring  partner  from  liability  for  transactions 
by  his  successor  in  the  name  of  the  firm.- 

§510.  Honoring  Successive  Drafts.  —  And  where  the  bank 
held  a  succession  of  drafts,  accepted  by  the  firm  before  disso- 
lution, which  drafts  had  been  paid  to  the  bank  by  the  firm, 
this  was  held  such  prior  dealings  with  the  firm  as  would  enti- 
tle the  bank  to  actual  notice,  as  distinguished  from  a  publica- 
tion in  a  newspaper.^ 

^  511.  Renewal  of  Accommodation  Paper.  —  So,  where  a  note 
was  given  to  the  bank  by  a  member  of  the  firm,  for  the  accom- 
modation of  a  third  party,  and  several  times  renewed  in  the 
name  of  the  firm,  though  the  retiring  partner  had  nothing  to 
do  with  the  giving  or  renewal  of  the  note,  this  was  held  such 
a  prior  transaction  as  would  require  the  retiring  partner  to 
give  actual  notice  of  a  dissolution  of  the  partnership,  in  order  to 

'  Bank  of  Brooklyn  v.  McChesney,  20  N.  Y.,  240. 

'■'Bank  of  Commonwealth  v.  Mudgett,  45  Barb.,  6(53;  S.  C,  44  N  Y.,  514, 
■where  judgment  was  affirmed  on  appeal. 

'Mechanics'  Bank  v.  Livingston,  33  Barb.,  458. 


DISSOLUTION    OF    PARTNERSHIP.  225  . 

discharge  himself  from  liabilitj  for  a  renewal   subsequent  to 
liis  retirement.^ 

§512.  Single  Purchase.  —  In  order  to  constitute  one  such  a 
creditor  as  lias  had  prior  dealings  with  the  firm,  that  he  may 
be  protected  in  giving  credit  upon  the  faith  of  the  partnership, 
without  inquiry,  in  tlie  absence  of  actual  notice  of  dissolution, 
it  is  not  necessarj^  in  everj'  case  that  his  prior  dealings  should 
have  been  numerous,  or  continued  over  a  long  space  of  time. 
This  principle  may  be  illustrated  by  the  case  of  Lyon  v.  John- 
son, *  There  the  defendants  had  been  doing  business  in  part- 
nership, and  while  so  engaged  in  business,  made  a  single 
purchase  of  coal  of  the  plaintiffs.  The  partnersliip  between  the 
defendants  was  dissolved  in  the  spring,  and  such  dissolution 
was  duly  published  in  a  newspaper  in  the  place  where  the 
business  of  both  plaintiffs  and  defendants  was  conducted.  At 
the  time  of  the  subsequent  purchase,  however,  the  plaintiffs 
had  no  knowledge  of  such  dissolution.  It  further  ajipeared 
that,  prior  to  the  former  transaction,  defendants  had  been  reg- 
ular customers,  in  their  firm  name,  in  purchasing  coal  of  the 
firm  of  which  plaintiffs  w-ere  the  successors,  carrying  on  the 
same  business,  in  the  same  place,  and  that  one  of  the  plain- 
tiffs was  a  member  of  such  firm,  and  the  other  had  been 
employed  by  them  as  a  clerk.  These  facts  were  held  sufficient 
to  entitle  plaintiffs  to  recover  of  the  partnership  as  constituted 
prior  to  the  dissolution,  notwithstanding  the  publication  of 
such  notice  of  dissolution.  Whether,  in  all  cases  of  a  single 
transaction,  the  creditor  would  occupy  the  same  position,  the 
case  cited  does  not  determine.  This  would  depend,  no  doubt, 
to  a  great  extent,  upon  the  magnitude  of  the  purchase,  or  the 
importance  of  the  dealing,  as  well  as  upon  other  attendant  cir- 
cumstances, such  as  the  lapse  of  time  between  the  two  trans- 
actions, or  between  the  prior  dealing  and  the  dissolution,  or 
between  the  dissolution  and  the  subsequent  dealing  for  which 
the  creditor  seeks  to    hold   the  partnership.     These   at  least 

'Vernon  v.  Manhattan  Co.,  17  Weiul.,  521;  S.  C,  22  Wend.,  183. 
»28Conn.,  1. 

15 


22()  NOTicp;  Bv  wiircir  liabilities  extinguished. 

would  be  facts  proper  for  submission  to  the  jury,  to  enable 
them  to  determine  whether  the  prior  dealings  between  the  par- 
ties were  such  as  to  warrant  the  creditor  in  believing  in  the 
continued  existence  of  the  partnership  as  constituted  at  the 
time  of  the  prior  dealings.^  But  where  the  prior  dealing  is 
trifling  in  amount  and  attended  with  such  circumstances  as 
would  indicate  that  it  was  made  without  any  reference  to  the 
parties  with  whom  it  was  had,  as  a  casual  sale  for  cash,  credit 
being  neitlier  asked  nor  given,  it  is  plain  that  the  reason  of  the 
rule  requiring  actual  knowledge  or  notice  of  the  dissolution  to 
those  having  former  dealings  with  the  firm  would  not  apply.' 
§513.  Notice  to  New  Customers.  —  We  have  already  stated 
that  where  the  person  with  whom  the  transaction  is  had  sub- 
sequent to  the  retirement  or  dissolution,  knew  of  the  former 
partnership,  he  would  be  entitled  to  notice,  provided  his 
subsequent  dealing  with  the  firm  was  in  reliance  upon  the 
responsibility  of  the  retiring  partner,  and  if  not  notified  would 
have  ariglit  to  pursue  his  remedy  against  the  retiring  partner, 
although  he  had  never  had  any  dealings  with  the  firm  prior  to 
its  dissolution,  or  the  retirement  of  such  partner.^  But  it  is 
not  essential  that  this  notice  should  be  actually  communicated 
to  him.  The  law  is  very  jealous  of  the  rights  of  those  having 
dealings  with  ])artnerships,  aikd  holds  the  individual  mem- 
bers of  any  firm  to  a  strict  accountability  for  its  obliga- 
tions; but  it  would  be  going  to  unwarranted  length  to  require 
one  who  wished  to  dissolve  his  connection  with  his  business 
associates,  to  actually  notify  every  one  who  knew  of  the  exist- 
ence of  the  partnership,  and  might  by  any  possibilit\^  have  deal- 
ings with  the  firm  in  the  future,  at  the  peril  of  being  held 
liable  for  such  future  transactions.  It  is  therefore  universally 
held  that  those  who  have  not  had  prior  dealings  with  the  part- 
nership, may  be  sufiiciently  notified  to  prevent  the  accruing 
of  any  liability  in  his  favor  against  the  retiring  partner,  by 

'  Lyon  V.  John-ion,  Supra. 

«Pars.  on  Part.,  U');  Chipp  v.  Rojiers,  12  X.  Y.,  283. 

'Ante  S483. 


DISSOLUTION    OF    PARTNERSHIP.  227 

publishing  tlie  notice  of  the  dissuhition  in  a  public  news- 
paper.^ 

§  514.  Time  of  Publication.  —  There  s,eems  to  be  no  fixed  rule 
as  to  the  time  for  which  such  publication  shall  be  made,  nor 
of  the  form  of  expression  to  be  used  in  order  to  exonerate  the 
retiring  member  of  the  partnership,  from  obligations  subse- 
quently incurred  in  the  nanie  of  the  firm. 

§  515.  Publication  in  Newspai)er.  —  Where  the  party  having 
subsequent  dealings  with  those  pretending  to  represent  the 
partnership  which  has  been  dissolved,  has  known  of  the  part- 
nership during  its  existence,  the  rule  generally  laid  down  by 
the  courts  in  this  country  and  in  England,  is  that  the  retired 
partner  may  be  held  liable  for  obligations  incurred  in  the  name 
of  the  firm  after  his  retirement,  unless  public  notice  has  been 
given  of  the  dissolution,  by  publishing  the  fact  in  a  news- 
paper.^ And  it  has  been  even  held  under  this  rule,  that  the 
mere  notorietj^  of  the  fact  of  dissolution,  would  not  suppl}'  the 
place  of  such  publication,  in  the  absence  of  actual  notice.^ 

§516.  Where  Published.  —  Where  this  rule  is  adhered  to 
strictly,  the  notice  is  in  general  required  to  appear  in  a  paper 
published  in  the  place  where  the  business  of  the  partnership 
is  carried  on;  but  so  far  from  this  being  an  inflexible  rule, 
the  publication  being  made  at  the  place  of  business  will  not 
always  be  conclusive  upon  subsequent  creditors  who  reside 
elsewhere.  As  where  the  factory  of  the  firm  was  located  at 
Baton  Rouge,  which  was  technically  the  place  of  business;  but 
the  partners  resided  in  the  city  of  ]^ew  Orleans,  where  they 
were  in  the  habit  of  raising  funds  for  the  prosecution  of  their 
business,  it  was  held  that  the  publication  of  a  notice  of  disso- 
lution in  the  newspapers  of  Baton  Rouge  was  not  suflicient  to 

'  Mowatt  V.  Ilowland,  3  Day,  :W3;  Lansing  v.  Gaine,  3  Johns,  300; 
Graves  D.  Merry,  G  Cow.,  701 ;  Ketcham  v.  Clark,  6  Johns.,  144;  Newsome  v. 
Coles,  2  Camp.,  617;  Godfrey  v.  Turnlmll,  1  Esp.,  371. 

'Soulhern  c.  Grim,  07  111.,  lOG;  Dickin.son  v.  Dickinson,  35  Gratt.,  321 ; 
Ainidowa  v.  Osgood,  34  Vt.,  378;  Prentiss  o.  Sinclair,  5  \%  14!);  Soutliwick 
e.  McGoveru,  3a  la.,  533. 

•Pitchtrv.  Barrows,  17  Pick.,3Gl;  Holdane  v.  Biitlerworth,  5  Bosw.,  1. 


228  NOTICE    BY    WHICH    LIABILITIES    EXTIKGUISHED. 

affect  creditors  residino^  in  Xew  Orleans,  wliu,  with  antecedent 
knowledge  of  the  partnership,  hut  no  knowledge  of  its  heing 
dissolved,  siihseqnentlj  gave  credit  to  the  firm.^ 

§  517.  Selection  of  Newspaper.  —  Bj  a  custom  of  London  the 
notice  is  published  in  the  "  London  Gazette.""^  But  nowhere 
in  this  country  is  it  imperatively  required  that  such  notice 
shall  be  published  in  any  particular  paper.  As  the  news- 
papers are  numerous,  the  retiring  partner  has  quite  an  extensive 
option  in  selecting  the  medium  of  communication.  By  pub- 
lishing the  notice  in  an  obscure  journal  of  very  limited  circula- 
tion, the  fact  may  be  effectually  concealed  from  those  most 
interested  in  knowing  the  status  of  the  partnership.  For  this 
reason  notification  merely  by  such  publication  does  not  always 
serve  to  exonerate  the  retiring  partner  from  liability  to  those 
who  have  never  had  prior  dealings  with  the  firm.  The  proof 
of  sufiicient  notice,  is  not  always  complete  with  the  proof  of 
publication,  as  in  cases  where  original  process  is  served  by  this 
method. 

§518.  Manner  Open  to  Inquiry.  —  The  manner  in  which  the 
publication  is  made  is  always  open  to  inquiry,  respecting  the 
paper  selected  as  a  medium  ;  the  number  of  times  the  adver- 
tisement is  published  ;  and  even  the  extent  of  its  display  and 
the  place  it  occupies  in  the  paper.  The  question  being  one  of 
diligence  and  good  faith  on  the  part  of  the  retiring  partner, 
he  will  not  be  allowed  to  avail  himself  of  such  published  notice, 
unless  it  appears  to  have  been  as  reasonable  and  sutficient  as 
mercantile  usage  requires,  or  the  public  have  a  right  to  expect.^ 

§519.  English  and  American  Doctrine. — The  rule  requiring  the 
publication  of  notice  as  an  absolute  condition  to  the  exemption 
of  the  retiring  partner  from  future  obligations  of  the  firm, 
entered  into  with  those  who  have  had  no  prior  dealings  with  the 
partnership,  prevails  in  England  with  considerable  uniformity, 
but  in  this  country,  it  has  been   emphatically  denied  by  the 

^  Grinnan  v.  Baton  Rouge  Mills  Co.,  7  La.  An.,  638. 

'  Parkin  u.  Carruthers,  3  Esp.,  248. 

» Wardwell  v.  Haight,  2  Barb.,  549;  Pars,  on  Part.,  418. 


DISSOLUTION    OF    PAKIXKESHIP.  229 

highest  legal  authority  known  to  our  jurisprudence.*  In  this 
iiase,  which  was  recently  decided  by  the  Supreme  Court  of  the 
United  States,  the  question  was  elaborately  discussed,  and  the 
British  and  xlmerican  authorities  carefully  and  ably  reviewed. 
The  record  disclosed  that  the  business  of  the  partnership, 
which  was  that  of  lumber  dealers,  had  been  conducted  at  the 
city  of  Davenport  in  the  state  of  Iowa.  Upon  the  dissolution 
actual  notice  was  given  to  those  having  former  dealings  with 
tlie  lirm,  and  there  was  such  an  open  and  notorious  change  of 
business  as  would  have  apprised  all  those  engaged  in  the  same 
line  of  business  in  that  community,  that  one  of  the  partners 
had  withdrawn.  The  action  was  brought  on  certain  drafts, 
drawn  and  accepted  by  the  remaining  partner  after  dissolution. 
The  holders  of  the  drafts  had  never  had  any  dealings  with  the 
■firm,  but  had  heard  that  there  was  such  a  firm  doing  business 
as  lumber  dealers  at  Davenport.  At  the  trial  there  was  no 
evidence  of  publication  of  notice  in  the  newspapers  of  Daven- 
port or  at  the  place  where  the  drafts  were  drawn,  which  was 
about  five  hundred  miles  distant,  on  the  Mississippi  river. 
Evidence  was  offered  and  rejected  by  the  trial  court,  for  the 
purpose  of  proving. — 1.  That  at  the  time  of  dissolution,  it 
was  generally  known  among  business  men  at  Davenport  that 
the  partnership  was  dissolved.  2.  That  it  was  generallj'  known 
along  the  Mississippi  river  that  this  dissolution  had  taken 
place.  3.  That  at  the  time  of  dissolution  the  facts  were  com- 
municated to  others  than  the  plaintiffs,  and  to  whom,  and  in 
what  manner  they  were  so  communicated.  4.  That  at  the 
time  the  partnership  was  dissolved  it  was  a  matter  of  general 
repute  and  knowledge  in  their  place  of  business.  6.  That 
prior  to  the  date  of  the  drafts,  notice  was  given  to  all  or  nearly 
all  the  lumber  dealers,  where  the  holders  of  such  drafts  resided 
at  the  time,  and  near  which  the  drafts  were  drawn  and  accepted. 
This  evidence  was  avowedly  offered,  not  for  the  purpose  of 
bringing  home  actual  knowledge  to  the  plaintiff,  but  merely  to 
show  circumstances  which,  from  their  notoriety,  would  amount 

'  Lovejoy  v.  Hpafiord,  4  Cent.  L.  .J.,  80. 


230  NOTICE    BY    WHICH    LIABILITIES    EXTINOriiSHED. 

to  such  implied  notice  as  would  sutHce  to  bind  strangers.  The 
substantial  ground  upon  which  the  evidence  was  rejected,  was 
that  nothing  short  of  publication  in  the  newspapers  of  the  place 
of  business  of  the  partnership  would  be  sufhcient.  In  reversing 
tlie  judgment  for  error  in  rejecting  the  evidence  offered  on 
behalf  of  the  defendant,  the  court  held  that  it  was  not  an  abso- 
lute inflexible  rule  that  there  must  be  a  publication  in  a  news- 
paper to  protect  a  retiring  partner.  In  delivering  the  opinion 
of  the  court  Mr.  Justice  Hunt  uses  the  following  language: 
"  The  question  is  not  exclusively,  whether  the  holders  of  the 
paper  did  in  fact  receive  information  of  the  dissolution.  If 
they  did,  they  certainly  cannot  recover  against  a  retired 
partner.  But  if  they  had  no  actual  notice,  tlie  question  is  still 
one  of  duty  and  diligence  on  the  part  of  the  withdrawing 
partner.  If  he  did  all  that  the  law  requires,  he  is  exempt, 
although  the  notice  did  not  reach  the  holders."^ 

§  520.  Liability  of  Retiring  Partner  Atfeeted  by  Subsequent 
Conduct.  —  The  conduct  of  the  withdrawing  partner  may  be 
such  as  not  to  entitle  him  to  any  benefit  from  a  published 
notice,  even  as  against  subsequent  creditors  of  the  firm  who 
have  had  no  prior  dealings.  As  where  the  firm  was  composed 
of  father  and  son,  and  the  father  withdrew,  leaving  the  l)usiness 
in  the  hands  of  his  partner  and  another  son,  with  authority  to 
continue  the  business  in  the  old  name,  the  father  was  held 
liable  to  a  subsequent  dealer  who  gave  credit  on  the  reputation 
of  the  partnership  previous  to  the  change,  notwithstanding  the 
fact  that  notice  of  the  dissolution  was  duly  published.^  The 
ground  of  this  decision  was  that  by  permitting  the  continued 
use  of  his  name,  the  father  was  estopped  from  denying  his 
liability,  as  against  one  without  actual  notice  of  his  withdrawal, 
who  trusted  the  partnership  on  the  strength  of  his  apparent 
connection  with  the  business. 

'  Lovejoy  D.  Spafford,  4  Cent.  L.  J.,  82;  See  also,  the  opiniou  of  Judge 
Edmunds,  in  Wardwell  c.  Hais'ht,  2  Barb.,  552 ;  Bristol  v.  Sprasrue.  8  Wend. 
423;  Ketcham  v.  Clark,  6  Johns,  144;  Pratt  c.  Page,  32  Vl.,  13;  Watkiuson 
V.  Bank  of  Penn.,  4  Whait,  482;  White  v.  Murphy,  3  Rich.  L.,  369. 

«  Speer  v.  Bishop,  24  O.  St.,  598. 


DISSOLUTION    OF    I'AKTNKKSHIP.  231 

§  521.  Estoppel.  —  In  the  case  of  ISTewcomet  v.  Brotzman'  the 
operation  of  the  doctrine  of  estoppel  was  placed  upon  appar- 
ently broader  i^i-onnd.  There  the  father  was  a  member  of  a 
partnership  which  was  dissolved  by  his  purchase  of  the  interest 
of  his  partner,  and  giving  the  entire  business  to  the  son,  who 
had  previously  represented  his  father  in  the  management, 
drawing  his  portion  of  the  profits.  After  the  firm  was  dis- 
solved, the  other  partner  remained  in  the  store  in  the  capacity 
of  a  clerk.  There  was  no  alteration  made  in  the  sign,  and 
the  new  proprietor  continued  the  business  as  before.  Under  this 
state  of  facts  the  court  held  that  one  subsequently  giving 
credit  to  the  original  firm  would  be  entitled  to  pursue  his 
remedy  against  the  former  partners  regardless  of  whether 
notice  of  dissolution  had  been  given  or  not. 

§  522.  Example  of  New  Customer  Entitled  to  Actual  Notice.  — 
Another  case  surrounded  by  peculiar  circumstances  is  tliat  of 
Amidown  v.  Osgood.^  Here  there  were  no  actual  dealings 
prior  to  the  dissolution,  but  at  the  time  of  the  transaction 
there  had  been  neither  actual  nor  implied  notice  given  to  the 
creditor.  The  goods  sold  were  partially  delivered,  prior  to 
the  publication  of  the  notice  of  dissolution,  and  while  the 
original  signs  and  all  the  external  indicia  of  the  continuance 
of  the  partnership  remained.  The  subsequent  transaction 
from  which  the  obligation  arose  was  based  on  the  faith  of  the 
partnership  credit,  and  it  was  held  that  although  the  first 
dealing  with  the  creditor  was  after  dissolution,  he  was  never- 
theless entitled  to  the  same  notice  as  though  the  entire  trans- 
action had  been  completed  during  the  actual  continuance  of 
the  partnership. 

§  523.  Knowledge  of  Expiration  of  Partnership.  —  A  creditor 
who  has  knowledge  at,  or  prior  to,  the  time  when  the  credit 
is  given,  that  the  partnership  with  which  he  deals  will  expire 
b}'  limitation  at  a  time  certain,  he  is  bound  by  such  knowl- 
edge to  the    same  extent  as   though   he    had  actual  notice 


>  09  Penn.  St.,  185. 
'  24  Vt,  278. 


232  NOTICE  Br  wiricn  liabilities  extinguished. 

thereof  when  it  occurred.  Thus  where  one  who  knew  that 
a  partnership  was  formed  to  continue  for  a  certain  period 
of  time,  and  during  such  continuance  the  firm  employed 
an  attorney  or  agent  to  make  purcliases  for  them,  sucli 
person,  selling  to  such  attorney  goods  which  were  osten- 
sibly purchased  for  the  partnership,  could  not  recover  from  the 
firm  for  anything  sold  after  the  expiration  of  the  time  to 
which  the  partnership  was  limited.^ 

§  524.  Notice  of  Limited  Partnership.  —  The  notice  by  which 
partners  may  exonerate  themselves  from  future  liability  is  not 
confined,  however,  to  notice  of  changes  in  the  constituency  of 
the  firm.  There  is  an  obligation  upon  each  of  tlie  partners, 
implied  by  law,  to  answer  for  the  contracts  of  each  of  his  co- 
partners, made  and  entered  into  on  behalf  of  the  firm.  With 
respect  to  the  business  of  the  partnership  the  law  implies  a 
reciprocal  agency,  by  which  each  may  bind  all  the  others.  But 
the  liabilities  arising  from  this  i-elation  may  be  restricted  by 
agreement  between  the  parties,  by  forming  what  is  known  as 
limited  partnersliips,  for  the  reason  that  the  liability  of  one  or 
more  of  the  partners  is  limited  to  a  certain  amount,  or  by 
restricting  the  power  of  one  or  more  of  the  members,  to  bind 
the  others  by  contracts,  or  to  incur  obligations  of  any  sort  in 
the  name  of  the  firm.  Such  limitations  or  restrictions,  can 
only  affect  persons  dealing  with  the  firm,  with  notice  thereof.^ 
But  those  having  notice  would  occupy  no  better  position 
with  reference  to  dealings  beyond  the  scope  of  the  liability 
assumed  by,  or  the  restrictions  imposed  upon,  certain  mem- 
bei-s  of  the  firm,  than  tliough  they  dealt  with  any  other  agent 
who  exceeded  his  limited  authority.''  Accordingly,  where  one 
of  the  members  of  a  ])artnership  executed  a  note  on  behalf  of 
the  firm  for  money  borrowed  ostensibly  for  the  firm's  use, 
the  lai'ger  portion  of  which  was  so  applied,  and  the  party  who 
took  the  note  had  received    notice  from  a  co-partner  of  the 

'Schlater  v.  Wiupenny,  75  Pcnu.  St..  ;W1. 

» Pars,  on  Part.,  98. 

"  Id.  99,  and  cases  cited. 


mss(n.uTioN  OF  partneksiiip.  23?> 

maker  that  such  maker  had  no  authority  to  draw  on  the  tirui 
account,  it  was  held  bj  Lord  Ellenboeough  that  tlie  liolder 
of  the  note  could  not  recover  from  the  partner  giving  tlie 
notice.' 

§  525.  Special  Partnership.  —  So,  where  there  was  a  stipula- 
tion between  A,  B  and  C,  who  appeared  to  tlie  world  as  co- 
partners in  business,  that  C  should  neither  participate  in  the 
profits  nor  share  the  losses,  and  should  not  be  liable  as  a  part- 
ner, it  was  held  that  C  was  not  liable  as  such  to  those  who 
had  notice  of  tliis  stipulation." 

§526.  Restrictions  and  Limitations. —  There  is  necessarily  a 
difterence  between  the  manner  of  mvino^  notice  of  the  disso- 
lution  of  a  partnership,  and  giving  notice  of  restrictions  upon 
the  powers,  or  lim*itations  upon  the  liabilities,  of  partners,  or 
those  who  hold  themselves  out  to  the  world  as  such.  ^Notice 
of  dissolution,  as  we  have  seen,  may  in  certain  cases  be  im- 
plied from  circumstances,*  or  may  be  purely  constructive  in 
its  character;*  but  with  respect  to  a  notice  which  contradicts 
all  the  appearances  by  which  men  are  usually  guided  in  tlieir 
dealings  with  each  otlier,  sound  policy  would  dictate  that  it 
should  be  actual,  in  the  strict  sense  of  the  term,  and  the  proot 
of  it  should  be  of  the  most  satisfactory  character.^  If  there 
were  any  difference  between  old  and  new  customers  it  would 
seem  that  the  latter  should  have  the  preference  regarding  the 
degree  of  knowledge  to  be  brought  home  to  them,  of  the  stipu- 
lations between  the  co-partners,  limiting  their  common  law 
liabilities,  or  restricting  their  powers. 

'  Gnlhvay  v.  Malhew,  10  East,  2G4.  See  also,  Brown  v.  Leonard,  3  Chit., 
120;  L(!Roy  v.  Johnson,  2  Pet.,  186;  Gow  on  Part.,  48,  49. 

i*  Alderson  v.  Pope,  1  Camp.,  404  (note);  Batty  /;.  McCundie,  3  Car.  &  P., 
202;  Denny  v.  Cabot,  (i  Met.,  82;  Bailey  v.  Clark,  G  Pick.,  372;  Boardman  v. 
Gore,  15  Mass.,  ?>?A  ;  Baxter  v.  Clark,  4  Ired.,  127;  Dow  v.  bayward,  12  N. 
H.,  271;  Lanijan  v.  Hewett,  13  Sm.  &  M.,  122;  Leavitt  v.  Peck,  3  Conn  124; 
Monroe  v.  Conner,  15  Me.,  178. 

"  An'e  i^iS^. 

*  Ante  %  513. 

'  Pars,  on  Part.,  98. 


234  NOTICE    BY    WHICH    LIABILITIKS    EXTINGUISHED. 

§  527.  Assumption  of  Excess  of  Authority  by  One  Partner.  — 
Where  the  contract  is  entered  into,  or  the  obligation  incurred 
by  tlie  partner  who,  at  tJie  time,  is  acting  beyond  the  scope  of 
his  authority,  as  conferred  by  the  articles  of  co-partnership, 
or  restricted  by  private  stipulation,  such  acts  will  not  bind  his 
co-partners  in  favor  of  one  iiaving  notice  of  the  misconduct 
of  the  partner  with  whom  he  treats,  when  such  act  amounts 
to  a  fraud  upon  the  partnership.'' 

^  52S.  3Iisapi)lioation  of  Funds. — When  the  excess  of  authority 
b}'  one  partner  is  in  the  misapplication  of  tlie  funds  of  the 
partnership  to  satisfy  a  debt  or  demand  against  himself,  or  for 
his  own  benefit,  the  party  with  whom  the  transaction  takes 
place,  knowing  that  the  funds  are  those  of  the  firm,  cannot 
avoid  knowledge  of  their  misapplication,  and  the  obligations 
assumed  will  be  void  as  against  the  partnership,  how  binding 
soever  they  may  be  upon  the  partner  who  commits  the  fraud." 

^529.  Effect  of  Dissolution  upon  Guarantor. — The  effects  of 
notice  of  dissolution  of  a  partnership  are  not  alwaj-s  confined 
to  the  parties  having  dealings,  prior  or  subsequent,  with  the 
firm.  Where  advances  are  made  to  a  co-partnership,  not  upon 
faith  in  the  firm's  credit,  but  upon  the  strength  of  the  guaranty 
of  a  third  party,  the  guarantor  cannot  be  held  for  advances 
made  by  the  creditor,  subsequent  to  his  receiving  notice  that 
the  partnership  is  dissolved.^ 

§  530.  Onus  Probandi.  —  When  one  attempts  to  escape  the 
responsibility  implied  from  his  connection  with  the  partner- 
ship in  whose  name  the  obligation  is  incurred,  upon  the 
ground  that  he  has  severed  such  connection,  and  notified  the 
creditor,  or  that  he  had  given  antecedent  notice  of  his  non- 
liability, the  authorities  all  seem  to  agree  in  casting  the 
burthen  of  pi"oof   u]")on  him   in  every  instance.''     If  the  cir- 

1  Connecticvit  River  Bank  ».  Fi-eiicli,  6  Alleu,  olo;  Warren  i\  French,  Id., 
317;  Sandilaads  c.  Marsh,  2  B.  S:  Aid.,  678. 

"Kemeys  v.  Richards.  11  Barb.,  812;  Burwell  v.  Springfield,  15  Ala.,  273; 
Green  v.  Deakin.  2  Stark.,  347;  Story  on  Part.,  g  132. 

"CremcrB.  Higginson,  1  Mason,  323. 

^Caruiichael  v.  Greer,  5o  Ga.,  116. 


UMITING    LIABILITY    OF    CARRIERS.  235 

cuiiistances  require  actual  notice,  it  is  necessary  for  him  to 
allege  and  prove  such  actual  notice.  If  the  case  admits  of 
constructive  notice,  by  publication  in  a  newspaper,  or  by  other 
notorious  proclamation  of  the  fact  relied  upon,  he  still  has  the 
affirmative  of  the  issue  upon  the  matter  of  notice,  and  until 
he  makes  ai  least  a  yrhna  facie  showing,  will  be  held  liable  as 
a  partner. 


11.  Notice  by  Carriers  Limiting  their  Liability. 


§531.  Division  of  Subject. 

533.  Inception  of  Liability. 

583.  Cannot  be  varied  b_y  Published  Notice. 

534.  Liability  at  Common  Law. 

535.  Difl'erent  Methods  of  Giving  Notice. 

536.  State  of  the  Law  in  England. 

537.  Notice  must  be  Brought  Home. 

538.  Posting  Notices  Insufficient. 

539.  Same. 

540.  Example  of  lusuificieut  Notice. 

541.  American  Rule — must  be  Clear  and  Explicit 

542.  Limitation  of  Extent  of  Liability. 

543.  Notice  on  back  of  R.  R.  Ticket. 

544.  Must  be  seen  and  Understood. 

545.  Party  unable  to  read  Notice. 

546.  Taking  Paper  Containing  Advertisement,  Insufladent. 

547.  To  whom  Given — Servant. 

548.  Printed  in  Bill  of  Lading,  Insufficient. 

549.  Conflicting  Notices. 

550.  Same. 

551.  Agent's  Acts  Governed  by  Notice  to  Principal. 

552.  General  Doctrine  in  America — Cannot  be  Limited  by  Notice. 

553.  May  be  by  Contract. 

554.  Notice  and  Assent. 

555.  Assent  must  be  Voluntary. 

556.  Same. 

557.  Views  of  .ludge  Redfield. 

558.  Notice  never  Exempts  from  Negligence. 


236  NOTICE    BV    WHICH    LIABILITIES    EXTINGUISHED. 

359.  Example  of  Express  Contract  lield  Inoperative. 

560.  Cases  arising  under  Englisli  Statute. 

561.  Further  Illustration  of  same. 

562.  Notice  of  Arrival. 

563.  Will  Terminate  Liability  as  Carrier. 

564.  Reasonable  time  for  Removal  after  Knowledge  of  Arrival. 

565.  Classification  of  Conflicting  Authorities. 

566.  Massachusetts,  Illinois,  Iowa. 

567.  Modification  of  the  Rule  in  Massachusetts. 

568.  New  Jersej',  Vermont, — Reasonable  Time  to  Remove. 

569.  Additional  Authorities. 

570.  New  York,  Michigan,  Texas,  New  Hampshire — Notice  Required. 

571.  Carriers  by  Water— Notice  Required. 

572.  Comparison  of  Conflicting  Views. 

573.  Rule  Requiring  Notice,  Preferred. 

574.  Conflict  Explained  by  DifiFerence  in  Local  Customs. 

575.  Rule  Afl"ected  by  Custom. 

576.  Waiver  and  Excuse. 

577.  Reasonable  Time  for  Removal. 

§531.  Division  of  Subject. — The  carriers'  notices  by  which 
their  liability  is  sought  to  be  limited,  has  reference — 1.  To  the 
notice  bv  which  they  endeavor  to  qualify  or  restrict  their 
responsibility,  imposed  by  law,  as  special  insurers  of  the  arti- 
cles committed  to  their  charge.  2.  The  notice  by  which  their 
responsibility  as  carriers  is  terminated. 

^  532.  Inception  of  Liability.  —  An  important  matter  for  con- 
sideration in  connection  with  notices  of  the  former  class,  is  the 
inception  of  the  carrier's  liability.  This  usually  takes  place 
when  the  goods  are  delivered  to  the  carrier  for  transportation, 
whether  immediately  taken  upon  the  vessel  or  vehicle  employed 
in  their  carriage,  taken  into  a  wareiiouse  to  await  the  carrier's 
convenience,  or  left  iipon  a  public  dock  or  wharf,  where  it  is 
usual  and  customary  to  deposit  articles  intended  for  transport- 
ation by  the  carrier  in  whose  charge  they  are  tlius  delivered.^ 
But  in  order  to  hold  the  carrier  to  the  onerous  responsibility 
imposed  upon  him  by  common  law,  something  more  than  the 
delivery  of  the  goods  to  such  carrier  must   appear.      It  is  not 

'  Merriam  v.  11.  &  N.  H.  Railw.,  20  Conn.,  3r)4;  Rogers  v.  West,  9  Ind.,  400; 
Burrell  v.  North,  2  Carr.  &  Kir.,  680;  Boehm  v.  Combe,  2  M.  &  S.,  172. 


LIMITING    LIABILITY    OF    CARRIERS.  237 

enough  that  he  is  charged  with  their  possession.  They  must 
he  dehvered  to  him  in  his  capacity  of  carrier  and  none  other 
The  articles  delivered  for  carriage  must  be  delivered  for  pres- 
ent transportation,  and  not  to  be  held  for  a  time,  and  shipped 
when  farther  orders  of  the  bailor  are  given  to  that  effect.^  If 
they  are  delivered  for  present  storage  and  future  shipment, 
although  in  the  possession  or  under  the  control  of  the  carrier, 
they  are  not  held  by  him  as  such,  but  only  as  a  warehouseman, 
who  is  held  to  less  strict  accountability.^ 

§  533.  Cannot  be  Varied  by  Published  Notice.  —  This  rule  as  to 
the  commencement  of  the  carrier's  liability  is  so  well  recog- 
nized that  it  cannot  be  abrogated  by  public  notice.  Thus, 
where  a  railroad  corporation,  having  a  warehouse  for  the  stor. 
age  of  goods  entrusted  to  it  for  present  shipment,  advertised 
that  it  would  not  be  responsible  for  goods  so  left,  except  for 
injuries  resulting  from  the  negligence  of  its  own  servants,  it 
was,  held  that  it  was  nevertheless  liable  for  the  value  of  sroods 
left  at  its  warehouse  to  be  presently  forwarded,  which,  while 
in  store,  were  destroyed  by  an  accidental  fire.^ 

§534.  Liability  at  Common  Law.  —  The  liability  of  common 
carriers,  as  fixed  by  the  law  of  this  country  and  England,  is 
probably  so  well  understood  as  to  render  unnecessary  further 
comment  or  illustration  than  a  statement  of  the  o-eneral  rule 
by  which  such  liability  is  governed  with  respect  to  the  goods 
committed  to  the  carrier's  charge.  This  rule  is  that  such  car- 
riers will  be  liable  for  all  damage  and  loss  of  goods  during  the 
carriage,  from  whatever  cause,  unless  from  the  act  of  God, 
which  is  limited  to  inevitable  accident,  or  from  the  public 
enemy.'* 

§  535.  Different  Methods  of  Givinjc;  Notice.  —  The  notice  b}"- 
which  carriers  seek  to  limit  this  liability  is  in   some  instances 

'  Moses  V.  Boston  &  M.  R.  R.  Co.,  24  N.  H.,  71 ;  Spade  v.  Ilud.  Riv.  Railw. 
16  Barb.,  383;  R.  R.  Co.   v.  Manf.  Co.,  10  Wall.,  318. 

'O'Neill  V.  New  York  &  Hud.  Riv.  R.  R.  Co.,  (30  N.  Y.,  138;  Selway  v. 
Holloway,  1  Ld.  Raym.,  46. 

«  Moses  V.  Boston  &  M.  R.  R.  Co.,  24  N.  II.,  71. 

*2  Redfield  on  Railways,  0;  and  cases  there  cited. 


2ob  NOTICE    BY    WHICH    LIABILITIES    EXTIXGIISIIED. 

actually  communicated  to  the  shij^per,  and  in  others  rests 
entireh"  upon  declarations  of  the  carrier's  rules,  made  public 
by  printed  posters,  signs,  or  the  advertisement  of  their  non- 
liability, in  connection  with  the  customary  solicitation  of 
public  patronage.  Another  method  adopted  alike  by  railroad 
corporations  and  other  carriers  by  land,  and  by  carriers  by 
water,  is  to  print  the  notice  of  the  exemption  claimed  upon 
the  ticket  of  the  passenger,  or  the  receipt,  way  bill,  or  bill  of 
lading,  when  enoraffed  in  the  carriaafe  of  ejoods  and  chattels. 

§  536.  State  of  the  Law  in  England.  —  The  state  of  the  law 
upon  this  c[nestion  in  England  prior  to  the  legislation  by  which 
the  responsibility  of  carriei'S  has  been  settled  upon  a  very  rea- 
sonable basis  in  that  country  *  may  be  illustrated  by  the  case  of 
Having  V.  Todd,^  where  the  vendor  of  goods  in  London  for- 
warded them  to  the  vendee  in  the  country  by  a  carrier  from 
whom  he  had  received  notice  that  his  liability  for  the  safety 
of  goods  committed  to  his  care  for  traiisportation,  was  limited 
so  as  not  to  extend  to  a  loss  by  fire.  During  the  time  the 
goods  were  in  the  possession  of  the  carrier,  they  were  accident- 
ally destroyed  by  lire,  and  in  deciding  an  action  brought  by 
the  vendee  to  recover  for  their  loss,  it  was  held  by  Lord  Ellen- 
BOKOUGH,  that  although  the  carrier  was  selected  by  the  vendor, 
the  vendee  was  bound  by  the  selection,  and,  ni>twithstanding 
that  the  carrier  was  bound  to  receive  the  goods,  he  might  make 
his  own  terms  and  exclude  his  liability  for  the  loss  of  the 
ffoods  altoirether." 


'  11  Geo.  IV.  &  1  Wm.  IV.,  C.  68;  Railway  &  Canal  Traffic  Act,  17  &  18 
Vict.  C.  31,  g  7. 

''  1  Stark.,  72. 

3  This  learned  jurist  is  reported  to  have  expressed  reuret  that  the  law  pre- 
sented such  encouragement  to  negligence.  In  a  case  decided  in  the  follow- 
ing year  (1816)  he  says  in  the  course  of  his  summing  up  to  the  jury:  "If  this 
action  had  been  brought  twenty  years  ago  the  defendant  would  have  been 
liable.  *  *  *  *  j^  ^^.^g  found  tliat  tlie  common  law  imposed 
upon  carriers  a  liability  of  ruinous  extent,  and  in  consequence,  qualili- 
cations  and  limitations  of  tliat  liability  have  been  introduced  from  tim  ^ 
to  time  till,  as  in  the  present  case,  they  seem  to  have  excluded  all  responsi- 
bility whatsoever,  so  that  under  the  terms  of  the  present  notice,  if  a  servant 


LIMITIXCr    LIABILITY    OF    CARKIERS.  239 

§537.  Notice  Mu??t  be  Brought  Home.  —  But  while  the  rule 
that  notice  was  sufficient  to  restrict  the  carrier's  common  law 
liability,  prevailed  in  England,  it  was  uniformally  insisted  by 
the  courts  that  such  notice  should  be  brought  home  to  the 
parties  to  be  aflected,  or  their  agents.  Thus  where  it  was  sought 
to  prove  notice  by  publication  in  the  "Gazette"  and  the  London 
Times,  it  was  held  that  though  the  former  was  admissible,  it 
would  be  weak  unless  supported  by  evidence  that  the  plaintiff 
was  in  the  habit  of  reading  the  paper,  and  the  latter  was 
excluded  for  the  want  of  prior  proof  that  it  was  taken  in  by 
himJ 

§  538.  Posting  Notices  TnsuflBcient.  —  So  where  printed  notices 
were  posted  in  the  most  conspicuous  places,  as  in  the  office 
where  the  goods  were  delivered,  it  was  held  insufficient  unless 
it  actually  came  to  the  knowledge  of  the  party  or  his  agent. 
As  where  the  porter  sent  to  deliver  the  plaintiff's  goods  to 
the  carrier,  saw  a  printed  notice  limiting  the  carrier's  liability, 
and  it  was  proven  that  such  porter  could  read,  this  was  held 
insufficient  in  the  absence  of  proof  that  he  had  read  the  notice.'- 

§539.  Same.  —  So  also  where  the  goods  were  delivered  to  a 
carrier's  cart,  sent  around  to  receive  them  for  the  defendant's 
wagon,  and  a  printed  notice  that  defendant  would  not  be  liable 
for  packages  beyond  the  value  of  five  pounds  unless  insurance 
was  paid,  was  posted  at  his  office,  and  cards  containing  a  similar 
announcement  had  been  circulated  about  the  town;  and  an 
advertisement  to  the  same  effect  had  been  published  in  the 
town  paper;  but  there  was  no  such  notice  on  the  cart,  nor  was 
it  proved  that  plaintiff  had  read  the  newspaper,  or  seen  the 
printed  notices  posted  at  the  office  or  circulated  through  the 
town,  it  was  held  that  the  defendant  had  not  given  sufficient 
notice  to  discharge  himself  from  his  common  law  liability.^ 

of  the  carrier's  liad,  in  the  most  willful  and  wanton  manner,  d(^stroyed  the 
furniture  intrusted  to  them,  theprinci[)als  would  not  have  been  liahle.  Lee- 
son  ■».  Holt,  1  Stark.,  18(i. 

'  Leesonc.  Holt,  Supra;  Walker  «.  .Jackson,  10  ,M.  and  W.,  Kit. 

2  Kerr  v.  Wiilaa,  2  St  irk  .  58;   Davis  v.  Willau,  Id.,  37i). 

'Clayton  v.  Hunt,  ;j  Camp.,  a?;  .-;ee  also  Munu  v.  Baker,  2   Stark.,  255. 


240  NOTICE    BY    WJIICII    LIABILITIES    EXTINGUISHED. 

§  640.  Example  of  Insufficient  Notice.  —  Where  the  carrier 
fastened  upon  the  door  of  his  office,  where  parcels  were  received 
for  carriac^e,  a  handbill,  blazoning  in  the  most  conspicuous  man- 
ner the  advantages  of  liis  conveyances,  and  stating  in  small 
characters  at  the  bottom  that  he  would  not  be  liable  for  pack- 
ages above  the  value  of  five  pounds,  unless  entered  as  such 
and  paid  for  accordingly,  this  was  held  not  to  be  such  notice 
as  would  bind  those  employing  him  as  a  carrier,  to  submit  to 
the  terms  imposed.^ 

§541.  American  Rule— Must  be  Clear  and  Explicit. — Where 
this  rule  is  adopted  in  the  United  States,  the  same  strictness 
with  reference  to  the  character  of  the  notice  is  required. 
Knowledge  or  information  must  in  all  cases  be  brought  home 
to  the  party  or  his  agents,  and  must  be  clear  and  explicit  as  to 
the  class  of  risks  from  which  exemption  is  claimed.^  The 
onus  of  proving  any  qualification  of  the  carrier's  common  law 
responsibility  rests  upon  him,  and  consequently  it  would  not 
only  be  essential  for  him  to  show  that  he  has  endeavored  to 
inform  the  party  by  whom  he  is  employed,  that  he  will  not  be 
liable  for  the  loss  or  damage  from  which  he  seeks  to  exonerate 
himself,  but  he  must  also  prove  to  the  satisfaction  of  the  jury 
that  such  information  has  been  communicated  to  the  party  to 
be  afiTected  thereby.^ 

§  542.  Limitation  of  Extent  of  Liability.  —  ]^otices  are  often 
given  by  carriers  for  the  purpose  of  limiting  the  extent  of  their 
liability,  by  requiring  notice  from  the  shipper  of  the  value  of 
packages  committed  to  their  charge,  with  a  view  to  fixing  the 
cost  of  carriage.  The  doctrine  that  notice  of  such  a  regula- 
tion, when  brought  home  to  the  shipper  will  be  binding  upon 
him,  seems  to  be  more  generally  accepted  in  this  country,  than 
where  the  notice  amounts  to  an  avowal  of  non-liability  for  the 

'  Butler  V.  Heane,  3  Camp.,  415.  See  also  Walker  v.  Jackson,  10  M.  and 
W.,  161 ;  Gouger  v.  Jolly,  1  Holt,  317. 

*  Beckman  v.  Shouse,  5  Rawle,  179. 

'  See  Verner  v.  Switzer,  33  Penn.  St.,  208 ;  Laing  v.  Colder,  8  Penn.  St., 
47!J ;  Bingham  v.  Rogers,  6  W.  &  S.,  495 ;  Atwood  v.  The  Reliance  Cc,  9 
Watts,  87 ;  Edwards  v.  Cahawba,  14  La.  An.,  324. 


LIMITING    LIABILITY    OF    CAKKIER8.  241 

ordinary  risks  of  transportation,  without  reference  to  the 
question  of  concealment  of  value.  A  regulation  to  the  effect 
that  the  carrier  will  not  be  responsible  for  packages  or  articles 
of  a  certain  description,  beyond  a  given  value,  unless  such 
value  be  disclosed,  and  the  carriage  paid  for  according  to  the 
rates  for  such  packages,  or  articles,  is  supported  upon  the 
plainest  principles  of  justice,  when  applied  to  such  commodi- 
ties as  might  far  exceed  their  apparent  value.^  Thus,  where 
dogs,  horses,  or  other  animals,  or  articles  of  personal  adornment 
are  committed  to  the  care  of  a  carrier,  for  transportation,  it 
seems  quite  reasonable  that  such  carrier  should  have  a  right 
to  require  a  disclosure  of  their  value,  where  it  exceeds  the 
ordinary  rate  at  which  similar  animals  are  held  in  the  market, 
and  to  demand  additional  compensation  for  their  carriage,^ 

§  543.  Notice  on  Back  of  Railroad  Ticket. — But  notice  of  such 
a  regulation,  in  order  to  be  of  binding  force  upon  a  shipper, 
must  be  actually  communicated  to  him  or  his  agents  in  con- 
nection with  the  matter.^  It  was  accordingly  held  in  Brown 
V.  Eastern  Railroad  Co.,^  that  a  notice  printed  on  the  back  of 
a  railroad  ticket,  and  detached  from  the  part  which  ordinarily 
contains  all  that  is  material  for  the  passenger  to  know,  to  the 
effect  that  the  company  would  not  be  liable  for  the  baggage  of 
passengers  beyond  a  certain  amount,  unless  the  value  was  dis- 
closed, would  not  be  binding  upon  a  passenger  where  such 
notice  was  not  seen  and  read  by  him  when  the  ticket  was  pur- 
chased ;  and  that  such  printed  notice  would  not  raise  a 
legal  presumption  that  the  ticket  was  purchased  with  a 
knowledge  of  the  conditions,  but  the  question  of  knowledge 
and  assent  on  the  part  of  the  passenger  would  be  for  the  jury. 


'  Riley  v.  Home,  5  Biog.,  217;  Wyld  v.  Picklbrd,  8  M.  &  W.,  443;  Clay  v. 
Willan,  1  H.  Blackst.,  298;  Izett  v.  Mountain,  4  East,  371. 

'Harrison  v.  London,  Brigliton  &  So.  Coast  Railw.  Co.,  2  B.  &  S.,  122; 
Tyly  V.  Morrice,  Carthew,  485;  Cole  v.  Goodwin,  19  Wend.,  251  ;  Cliiy  ». 
Willan,  1  H.  Blackst,  298;  Mech's  &  Tr.  JVk  ».  Gordon,  5  La.  An.,  G04; 
Orange  Co.  Bank  v.  Brown,  9  Wend.,  85;  Gibbon  n.  Paynton,  4  Burr.,  2298 

^  Cole  V.  Goodwill,  Supra. 

Ml  CuKli.,  97. 

16 


2-1:-*  Norrcic  nv  wirioir  i.rAiui.iTrKS  extinguished. 

§  544.  Must  be  Set'ii  and  Understood.  — The  doctrine  in  Brooke 
V.  Pickwick,'  is  applicable  to  all  such  notices.  It  is  there  laid 
down  by  Bkst,  C.  J.,  that  it  is  not  enough  to  post  them  con- 
spicuously about  the  office  or  place  of  business  of  the  carrier, 
where  the  shipper  may  see  and  read  them.  It  is  important 
that  the  customer  should  not  only  see,  but  understand  the 
notice,  and  the  carrier  should  be  to  the  pains  to  make  him 
comprehend  the  rebtrictions  and  limitations  upon  his  liability, 
which  he  proposes  to  claim.  And  in  the  case  of  Kerr  v. 
Willan,*^  on  a  motion  for  new  trial,  before  a  full  bench,  the  court 
refusing  the  rule,  and  affirming  the  decision  of  Lord  Ellkn- 
BORouGH,  said:  "  If  the  agent  could  not  read  he  might  hear, 
or,  at  all  events,  a  hand  bill  might  be  delivered  to  him,  to  be 
taken  to  his  principal,"'  and  thus  the  notice  be  made  effectual.'' 

§  545.  Party  Unable  to  Read  Notice.  —  So  in  an  action  brought 
to  recov^er  a  <|uantity  of  coin,  which  plaintiff  had  placed  in  a 
trunk  with  his  personal  baggage,  the  whole  being  lost  in  tran- 
sit over  the  defendant's  line,  the  defense  was  that  the  defend- 
ant, a  railroad  corporation,  had  published  a  notice  that  it 
would  carry  fifty  pounds  of  baggage  for  each  passenger,  and 
that  passengers  were  "  expresslj^  prohibited  from  taking  any- 
thing as  baggage  but  tlieir  wearing  apparel,  which  will  be  at 
the  risk  of  the  owner."  Plaintiff  had  given  no  notice  of  the 
contents  ff  his  trunk,  but  had  paid  for  extra  weight,  and 
being  a  German  was  unable  to  read  defendant's  notices,  even 
if  his  attention  had  been  specially  directed  to  them.  The 
corporation  was  held  liable  as  an  insurer,  according  to  the  rules 
of  cummon  law  governing  carriers,  for  the  reason  that  it  failed 

'  4  Bing.,  218. 

''  3  Stark.,  oH. 

^In  order  for  the  carrier  to  limit  the  extent  of  his  liability  it  is  necessary 
that  he  either  give  the  notice  in  a  manner  so  it  will  be  understood,  or  if  his 
objections  are  tf)  a  particular  package  on  account  of  supposed  concealment 
of  the  value  of  its  contents,  he  must  make  inquiry;  for  if  there  is  no  cod- 
cealment  on  the  part  of  the  shipper  the  carrier  will  be  bound  for  its  full 
value,  in  case  of  loss.  Mackliu  v.  Waterhouse,  5  Bing.,  213;  Titchburne  ». 
White,  1  Str.,  14^. 


LIMTTING    LIABILITY    OF    CARFilER:*.  243 

to  show  tliat  the  contents  of  the  notices  intended  to  qualify  its 
liability,  ever  came  to  the  knowledge  of  the  plaintiff.^ 

§  o4:6.  Taking  Paper  Contitining  Advertisement  Insufficient. —  In 
Rowley  v.  Ilorne,'  it  was  in  evidence  that  plaintiff  had  regu- 
larly taken  a  weekly  newspaper  in  which  defendant's  adver- 
tisements were  inserted  for  over  three  j-ears.  This  the  court 
held  insufficient  to  raise  a  legal  presumption  of  plaintiff's 
knowledge  of  the  contents  of  such  advertisement,  as  it  could 
not  be  intended  that  a  party  read  all  the  contents  of  any  news- 
paper he  might  take. 

§547.  To  wIkhu  Given — ^Servaut.  —  In  one  case,  plaintiff's 
trunk  was  deposited  by  the  porter  with  a  postmaster  to  be 
delivered  to  the  driver  of  defendants'  stage  coach.  The  doc- 
trine was  here  acknowledged,  that,  had  notice  of  any  regulations 
limiting  defendants'  liability  as  common  carriers  been  commu- 
nicated to  plaintiff  or  his  servant,  the  porter,  such  notice  would 
have  qualified  the  carriers'  responsibility.  But  the  mere  fact 
that  the  postmaster  through  whose  hands  the  trunk  passed  to 
defendants'  agent,  knew  that  defendants  had  posted  notices 
"  that  they  would  not  be  accountable  for  any  baggage  unless 
the  fare  was  paid  and  the  same  entered  on  the  way-bill," 
would  not  affect  plaintiff,  as  the  postmaster  could  not  be 
regarded  as  his  agent.^ 

^  548.  Printed  in  Bill  of  Lading,  Insufficient.  —  A  condition 
printed  in  tlie  bill  of  lading,  that  the  owner  assumes  all  risk, 
has  been  held  no  evidence  of  a  contract  limiting  the  liability 
of  the  carrier,  where  the  bill  was  not  seen  and  assented  to  by 
the  owner,  prior  to  the  shipment.'' 

)^  540.  Conflicting  Notice.s.  —  Where  a  notice  in  large  letters, 
written  on  a  board  and  fastened  up  in  the  coach  office,  declared 
that  the  proprietors  of  the  coaches  would  not  be  responsible 
tor  plate  and  jewels  delivered  for  transportation,  however 
small  the  value,  unless  entered  and  paid  for  as  such;   but  such 

*Camb.  &  Amb.  Knilw.  o.  B.ildaut;  1(J  Peim.  SL,  ()7. 

'3Bing.,  2. 

»Bean  v.  Green,  12  Me,  422. 

*Flavey  0.  N'orthern  Transi).  Co.,  1.")  Wis.,  120. 


244  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

proprietor  also  circulated  a  handbill  stating  ''that  he  would 
not  be  answerable  for  any  article  above  the  value  of  five  pounds, 
unless  entered  as  such  and  paid  for  accordingly,''  it  was  held 
that  the  liandbill  might  be  presumed  to  contain  the  whole  of 
the  limitations  upon  the  carrier's  liability,  which  he  intended 
to  claira.^ 

§550.  Same. —  So,  in  Munn  v.  Bakeiy  where  the  carriershad 
given  two  public  notices,  one  of  which,  limiting  their  liability  as 
carriers,  was  printed  in  large  letters,  and  posted  in  the  defend- 
ants'counting-house  and  warehouse  at  the  wharf,  and  the  other 
was  on  a  smaller  paper,  containing  no  such  limitation,  Lord 
Ellenbokough  was  of  the  opinion  that  by  the  delivery  of  a 
notice  without  the  limitation,  the  defendants  had  nullified  the 
notice  which  contained  the  limitation.  Having  o-iven  two 
notices,  they  were  bound  by  that  least  favorable  to  themselves. 

§  651.  Agent's  Acts  governed  by  Notice  to  Principal.  —  A  hard- 
ship is  sometimes  worked  by  the  rule  which  gives  eftect  to 
limitations  and  restrictions  upon  the  liability  of  common  car- 
riers, upon  notice  to  the  owner  of  the  goods  carried,  irrespect- 
ive of  the  assent  of  such  owner,  as  reqiiired  by  most  of  the 
American  cases.  As  where  notice  was  communicated  to  one, 
whose  agent,  without  any  knowledge  or  information  of  the 
limited  liability,  sent  a  package  of  bank  bills  to  his  principal 
by  the  carrier,  and  such  package  was  lost.  Here,  there  could 
be  no  room  for  a  presumption  of  assent  to  the  terms  of  the 
notice,  from  the  fact  that  the  ])ackage  was  entrusted  to  the 
carrier  after  the  receipt  of  the  notice,  because  the  bills  were 
not  entrusted  to  the  carrier  by  one  who  knew  that  such  notice 
had  been  given ;  yet  it  was  held  that  the  carrier  was  exoner- 
ated, because  of  notice  to  the  principal.^ 

§  552.  General  Doctrine  in  America — Cannot  be  Limited  by  No- 
tice. —  The  weight  of  American  authority,  independent  of 
statutory  provisions,  is  decidedly  against  the  doctrine  allow- 

1  Cobden  v.  Bolton,  2  Camp.,  108 

»  2  Stark.,  255. 

*  Mahew  v.  Eames,  3  B.  &.  C,  601. 


Li:MniNG    LIABILITr    OF    CAKRIERS.  245 

ing  the  liability  of  common  carriers  to  be  limited  or  restricted 
by  mere  notice.^  Cases  have  even  been  interpreted  by  an  able 
text  writer  as  going  the  length  of  maintaining  that  carriers 
could  not  exonerate  themselves  from  their  general  liability, 
either  by  notice  brought  home  to  the  owner  of  goods,  at  tlie 
time  they  were  delivered  for  carriage,  nor  even  by  express  con- 
tract to  that  effect.^ 

§  553.  Maj'  be  by  Cimtract.  —  But  the  more  prevalent  opinion 
seems  to  be  that  carriers  may  exonerate  themselves  from  the 
liability  imposed  by  common  law,  b}'  contract  between  the 
shipper  and  the  carrier,  though  not  by  mere  notice  from  the 
latter  to  the  former.^ 

§  554.  Notice  and  Assent. — It  is  true  that  many  of  the  adjudged 
cases  in  this  countrj-,  place  the  carrier's  exemption  from  lia- 
bility upon  the  ground  of  his  having  given  notice  to  the 
shipper  that  he  would  not  be  lield  to  tlie  full  measure  of  his 
common  law  liability  in  undertaking  to  transport  certain 
property,  and  that  tlie  shipper  has  assented  to  the  terms  of 
such  limited  liability;"'  but  this  notice  and  assent  amounts  to 
nothing  less  than  an  agreement  between  the  parties.  If  one 
party  gives  the  other  express  notice  that  he  will  undertake  the 
performance  of  a  particular  service,  only  upon  certain  condi- 
tions, and  the  other  accepts  the  service  expressly  upon  such 
conditions,  there  is  nothing  wanting  to  render  this  a  matter  of 
agreement  between  the  parties  to  the  arrangement,  and  such 
agreement  will  necessarily  include  the  conditions  upon  which 

'  Fish  V.  Chapman.  2  Ga.,  :54i» :  l-'ann.  it  Mec  h's  Bk.  v.  Chaniphiin  Tr.  Co.^ 
23  Vt.,  18(j;  .Jones  v.  Voorhees,  10  O.,  145;  Infra. 

2  2  Redf.  ou  Railw.,  ^  150,  "J  (j ;  Cole  v.  Goodwin,  19  Wend.,  251 ;  Ilollister 
T.  Nowlen,  19  Wend.,  234;  Gould  v.  Hill,  2  Hill,  TiSS;  Cam.  &  Am.  Railw. 
•p.  Belknap,  21  Wend.,  354;  Clark  v.  Faxtou,  21  Wend.,  153;  Powell  v. 
Myers,  2«  Wend.,  591. 

'Steele  v.  Townsend,  37  Ala.,  247;  Canid.  &  Amb.  R.  R.  Co.  v.  Belknap,  21 
Wend.,  354;  Farmers'  &  Mech's  B'k  v.  Cliamplain  Trans.  Co.,  23  Vt., 
18G;  York  Co.  v.  Central  R.  R.,  3  Wall.,  107;  Walker  v.  Trausp.  Co.,  Id., 
150;  Lee  v.  Marsh,  43  Barb.,  102;  Ills.  Central  R.  R.  Co.  v.  Morrison,  19  111., 
1.3f!;  Gott  n.  Dinsmore,  111  Mass.,  45. 

■»  Oppenheimer  v.  U.  S.  Ex.  Co.,  69  111.,  02;  Field  v.  Cli.  &  R.  I.  R.  R.  Co., 
71  111.,  458. 


246  NOTICE    BY    WlllCri    LIABILITIES    KX TIXGUISIIED. 

the  sei-vlce  was  performed,  as  well  as  the  peforniance  of  the 
service  itself.^ 

§  555.  Assent  must  be  Voluntary.  —  The  reciprocal  obligations 
arising  from  an  undertaking  hy  a  common  carrier  to  transport 
goods,  has,  however,  been  placed  on  higher  grounds  in  the  case 
of  a  railroad  corporation,  than  that  of  a  mere  voluntarv  ser- 
vice. It  is  held  to  be  the  dvty  imposed  by  law  uix)n  such 
carriers,  to  transport  property  for  all  persons  indifferently. 
Tliis  is  a  service  which  they  cannot  refuse  to  perform,  nor  can 
they  surround  its  performance  with  such  conditions  and 
restrictions  of  their  responsibility,  as  will  compel  shippers  to 
release  them  from  any  obligation  imposed  by  law  with  refer- 
ence to  the  care  to  be  taken  of  the  property  while  in  their 
possession.  The  only  manner  in  which  they  can  be  exone- 
rated from  their  liability  is  by  a  fi'ee  and  full  agreement  of  the 
parties.^ 

>J  550.  Same.  — With  this  view  of  the  matter,  it  would  seem 
that  something  more  than  the  tacit  assent  of  the  owner  of  the 
goods  carried  would  be  requisite.  This  agreement,  to  render 
it  binding,  must  have  for  its  support,  what  is  necessary  in  all 
contracts — a  consideration.^  If  the  owner  of  the  goods  may 
insist  upon  the  carriage  of  his  pi-operty  by  the  carrier,  as  a 
matter  of  TigM  and  the  carrier  is  bound  to  accept  them  for 
transportation  as  a  correlative  fi?«?^y,  subject  to  the  responsibil- 
ity imposed  by  law  upon  carriers,  the  performance  of  this  pos- 
itive duty  could  not  be  construed  into  a  consideration  for  the 
contract  by  which  the  owner  consents  to  a  (pialification  of  the 
carrier's  liability.  Unless  there  should  be  some  consideration 
passing  from  the  carrier  to  the  owner  of  the  goods,  as  abate- 
ment in  the  charges,  or  other  advantage,  which  he  was  not 
positively  entitled  by  law  to  demand,  such  a  conti-act  would 
possess  no  more  validity  than  an  agreement  between  the  maker 

12  Redfield  on  Raihv.,  J;  159,  "T  2. 

'^Mich.  Cent.  R.  R.  v.  Hale,  6  Mich.,  24.",;  ^McMillan  r>.  M.  S.  &  X.  I.  R.  R. 
Co.,  16  Mich.,  79;  Adams  Ex.  Co.  t.  (xutliiu-,  9  Bu-^h,  78;  Messen.ijcr  v.  Peuu. 
R  R.  Co.,  37  N.  J.  Law..  581 ;  Brown  «.  Grand  Trunk  R.  R.,  54  X.  H.,  5:15. 

*1  Pars,  on  Cont.,  427,  and  case  cited. 


LIMITING    LIABILITY    OF    CARRIERS.  247 

and  tlie  payee  of  a  proinissorv  note,  past  due,  for  the  exten- 
sion of  time,  in  consideration  of  the  payment  of  a  portion  of 
tlie  principaL^ 

§  557.  Views  of  Judge  Redfleld.  —  Judge  Redfield,  in  his 
excellent  work  on  Eailways/ expresses  views  upon  this  subject, 
which  seem  to  lead  to  the  foreo^oing;  conclusions.  Savs  the 
learned  author  : — "  But  a  notice  bi-ought  home  to  the  owner  of 
the  goods,  as  evidence,  merits  a  very  different  consideration,  in 
this  species  of  bailment,  from  an}'  other,  where  there  is  no 
obligation  on  the  bailee  to  assume  the  duty.  In  tlie  case  of  a 
carrier  with  whom  it  is  not  optional  altogether  whether  to  carry 
goods  offered  or  not,  but  where  he  must  carry  such  goods  as  he 
is  accustomed  to  carry,  upon  the  general  terms  of  lialtility 
imposed  by  the  law,  or  submit  to  an  action  for  damages,  and 
where  every  one,  desiring  goods  carried,  has  the  option  to  have 
them  carried  without  restriction  of  the  carrier's  duty,  unless 
he  choose  to  waive  some  portion  of  his  legal  rights,  for  pres- 
ent convenience  or  ultimate  peace,  tlie  mere  fact  of  such 
notice,  restricting  the  carrier's  liability,  being  brought  home 
to  the  knowledge  of  the  owner  of  goods,  before  or  at  the  time 
of  depositing  them  with  the  carrier,  is  no  certain  ground  of 
inferring  whether  the  carrier  consented  to  recede  from  his 
notice  and  perform  the  duty  which  the  law  imposes  upon  him, 
or  the  owner  of  the  goods  consented  to  waive  some  portion  of 
his  legal  rights.  Perha2)s,  upon  general  grounds  of  inference, 
it  might  be  regarded  as  more  logical  and  more  reasonable  to 
infer  that  the  carrier  receded  from  an  illegal  pi-etension,  than 
the  owner  of  the  goods  from  a  legal  one." 

§558.  Notice  Never  Exempts  from  Negligence.  —  Where  it  is 
admitted  that  carriers  may  limit  their  common  law  liability  by 
notice  to  the  owners  of  property  carried,  by  specially  enumei-- 
ating  the  risks  against  which  they  decline  to  insure;  and 
where  tliere  is  such  notice  and  assent,  as  to  amount  to  an 
agreement  between  the  parties,  that  tlie  carrier  shall  be  released 


'  Story  on  Prom.  Notes,  j^  414,  note. 
»2Kwll-.  onRailw.,  8  159. 


248  NOTICK    BY    WHICH    IJABIL[TIES    EXTINGUISHED. 

from  the  burthens  imposed  hy  reason  of  their  character  of 
common  carriers,  the  benefits  of  this  exemption  will  not  extend 
to  losses  which  are  the  result  of  the  negligence  of  the  carrier 
or  his  servants.^  Some  of  the  cases  cited  take  the  ground  that 
not  only  will  notice  be  insufficient  for  the  purpose  of  excusing 
negligence  in  the  carrier,  but  that  an  express  contract  for  that 
purpose  will  be  equally  unavailing,  for  the  reason  that  such 
contracts  are  against  public  policy.'^ 

§559.  Example  of  Express  Contract  held  Inoperative. — In  an 
important  case  decided  in  the  Supreme  Court  of  the  United 
States,^  where  an  express  carrier,  by  special  contract  with  the 
transportation  company,  was  allowed  to  carry  packages  upon 
their  boats,  under  the  immediate  care  and  oversight  of  such 
expressman,  with  the  express  stipulation  that  all  persons 
delivering  parcels  to  the  expressman  for  carriage  should  be 
notified  that  he  alone  was  responsible  for  their  safety, 
there  was  annexed  to  the  receipt  given  by  him  for  goods,  the 
following  notice,  which  was  also  required  to  appear  in  con- 
nection with  his  public  advertisement:  "Take  notice,  William 
F.  Harndcn  is  alone  responsible  for  the  loss  or  injury  of  any 
articles  or  property  committed  to  his  care,  nor  is  any  risk 
assumed  by,  nor  can  any  be  attached  to,  the  proprietors  of  the 
steamboats,  in  which  his  crate  may  be  and  is  transported,  in 
respect  to  it  or  its  contents  at  any  time."  The  expressman 
liad  undertaken   the  carriage  of  a  considerable  sum  in  specie, 

'  Cole  B.  Goodwin,  19  Wend.,  251 ;  Ashmore  v.  Steam  Tow  and  Trans.  Co., 
28  N.  .J..  180;  Riley  v.  Home,  5  Bing..  217;  Sleat  v  Fagg  ,  5  Barn.  &  Aid., 
843;  BirkettiJ.  Willan,  2  Barn.  &  Aid.,  856;  Bodeoham  v.  Bennett,  4  Price, 
yi ;  Smith  v.  Home,  8  Taunt.,  144;  Newborn  v.  Just.  2  Carr.  &  P.,  76;  Wyld 
V.  Pickford,  8  M.  &  W.,  44?>;  Orndorft"  v.  Adams  Ex.  Co.,  3  Bush.,  194; 
Rhodes  v.  Louisv.  &  Nashv.  R.  R.  Co.,  9  Bush.,  688. 

-Ashmore  «.  Penn.  Steam  Tow  &  Trau';.  Co.,  Supra;  Cole  ?).  Goodwin, 
Supra;  Sager  i?.  Portsm.,  S.  &  P.  &  E.  R.  R.,  31  Me.,  228;  Camd.  &  Amb. 
Railw. -•.  Baldauf,  16  Penn.  St.,  6T;  Bingham  v.  Rogers,  6  W.  &  S.,  495; 
Penn.  Railw.  Co.  v.  McCloskey.  23  Penn.  St.,  526;  Baker  v.  Brinson,  9  Rich., 
201;  R-no  V.  Hogan,  12  B.  Mon.,  63;  Hall  n.  Cheney,  36  N.  H.,  26;  Powell 
V.  l^enn.  R.  R.  Co.,  32  Penn.  St.,  414. 

«  New  .Jersey  Steam  Nav.  Co.  v.  Merchants"  Bank.  6  How.,  344. 


LIMITING    LIABILITY    OF    CARRIERS.  249 

foi'  the  bciiik,  and  the  boat  on  which  lie  was  transport! nt^  it 
from  Kew  York  to  Boston,  through  the  gross  mismanagement 
of  the  companj-'s  agents  and  servants,  was  burned,  and  the 
specie  totally  lost.  In  pronouncing  the  opinion  of  the  court, 
Mr.  Jnstice  Nelson  gives  the  following  able  and  satisfactory 
explanation  of  the  rule  governing  the  case:  "The  special 
agreement  in  this  case  under  which  the  goods  were  shipj)ed, 
provided  that  tliey  should  be  conveyed  at  the  risk  of  Ilarnden, 
and  that  the  respondents  were  not  to  be  resjxjnsible  to  liim,  or 
to  his  employers,  in  any  event,  for  loss  or  damage.  The  lan- 
guage is  general  and  broad,  and  might  very  well  comprehend 
every  description  of  risk  incident  to  the  shipment.  But  we 
think  it  would  be  going  further  than  the  intent  of  the  parties, 
upon  any  fair  and  reasonable  construction  of  the  agreement, 
were  we  to  regard  it  as  stipulating  for  willful  misconduct,  gross 
negligence,  or  want  of  ordinary  care,  either  in  the  seaworthi- 
ness of  the  vessel,  her  proper  equipment  and  furniture,  or  in 
her  management  by  the  master  and  hands.  This  is  the 
utmost  effect  that  was  given  to  the  general  notice,  both  in 
England  and  in  this  country,  when  allowed  to  restrict  the 
carrier's  liability,  although  as  broad  and  absolute  in  its  terms 
as  the  special  agreement  before  us  (Story  on  Bailments,  §  570); 
nor  was  it  allowed  to  exempt  him  for  accountability  for  losses 
occasioned  by  a  defect  in  the  vehicle  or  mode  of  conveyance 
used  in  tlie  transportation.  Although  he  was  allowed  to 
exempt  himself  from  losses  arising  out  of  events  and  accidents 
against  which  he  was  a  sort  of  insurer,  yet,  inasmuch  as  he 
liad  undertaken  to  carry  the  goods  from  one  place  to  another, 
he  was  deemed  to  have  incurred  the  same  degree  of  respon- 
sibility as  that  which  attaches  to  a  private  person  engaged 
casually  in  the  like  occupation,  and  was  therefore  bound 
to  use  ordinary  care  in  the  custody  of  the  goods,  and  in  their 
delivery,  and  to  provide  proper  vehicles  and  means  of  convey- 
ance for  their  transportation.  This  rule,  we  think,  should 
govern  the  construction  of  the  agreement  in  question." 


250  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

§560.  Cases  Arising  under  Eng•li^s!l  Statute.  —  By  the  English 
Tlailway  &  Canal  Traffic  Act/  the  current  of  authority  in  that 
country  is  somewliat  changed  from  wliat  it  was  in  the  time  of 
Lord  Ellenborough,  when  he  expressed  regret  at  tlie  encour- 
agement given  by  tlie  precedents  to  negligence.^  By  this  Act. 
notices,  and  ev^en  contracts  exempting  common  carriers  from 
liability,  are  made  the  subject  of  revision  by  the  courts,  as  to 
the  reasonableness  of  the  conditions  upon  which  the  carriage 
is  undertaken.^  Under  this  statute  it  has  been  decided  that  a 
notice  by  a  carrier  by  rail,  assented  to  by  the  shijjper,  that  in 
regard  to  live  stock  they  would  not  be  liable  for  any  injury  or 
damage  howsoever  caused,  was  unreasonable,  and  would  not 
excuse  the  company,  where  the  loss  occurred  from  a  defect  in 
a  box  in  which  the}'  undertook  to  cany  a  horse.^  Where  the 
carrier  gave  notice  that  he  would  not  be  responsible  for 
packages  of  a  particular  description,  he  was  nevertheless  held 
liable  to  the  owner  of  one  of  such  packages,  which  he  under- 
took to  transport,  and  delivered  to  the  wrong  person.^ 

§561.  Further  Ilhistratiou  of  Same.  — In  a  case  arising  under 
the  English  Carriers'  Act,  the  court  in  determining  whether 
the  conditions  upon  which  goods  were  accepted  for  transporta- 
tion, or  the  special  contract  between  the  shipper  and  the 
carrier,  was  reasonable,  considered  the  whole  matter  brought 
before  them,  and  held  that  a  condition  that  the  company 
would  not  be  responsible  for  the  loss,  detention  or  damage  of 
any  package  insufficiently  or  improperly  packed,  wsls  unjust 
and  unreasonable,  thougli  it  was  admitted  that  regulations  as 
to  the  time  within  which  a  claim  for  damages  should  be  made, 


'17  aud  18  Vict.,  Cli.  ;il,  g  7. 

« Ante  =5  536. 

'Peek  V  Noi-th  StalTortlshire  Raihv.  Co.,  10  Ho.  Ld's  Cas.,  478;  Lloj-d  v. 
Waterford  &  Limerick  Railw.  Co.,  9  Law  T.  (N.  S.),  89;  Allday  c.  Great 
West.  Railw.  Co.,  11  .Tin-.  (N.  S.),  12. 

♦  McManiis  v.  Lancashire,  &c  ,  l^ailw.,  4  H.  &  N.,  327. 

'Durtr.  Budd,  3  Brod.  &  Biug.,  177;  Beck  v.  Evans,  16  East,  244;  Boden- 
ham  r.  Bennett,  4  Price,  31. 


LIMITING    IJABILI-J'T    OF    CARRIEKS.  251 

belonged  to  a  class  which  might  be  tlie  proper  subject  of  stipa- 
latioi)  between  the  parties.^ 

§562.  Notice  of  Arri%'al. — The  notice  of  arrival,  when  re- 
quired of  common  carriers,  is  a  duty  which  is  incidental  to 
the  peculiar  circumstances  bj'  which  the  most  extensive  public 
carriers  are  prevented  from  actually  delivering  the  articles 
transported  to  the  immediate  possession  of  the  consignees. 
The  instances  are  rare  in  which  it  is  practicable  for  those  en- 
gaged in  carrying  by  water,  to  make  personal  delivery  of  goods 
carried  on  their  vessels.  The  same  may  be  said  of  carriers  by 
rail.  The  best  equivalent  for  such  delivery,  is,  when  the  goods 
have  I'eached  the  place  of  their  consignment,  to  give  notice  to 
the  consignee. 

§  563.  Will  Terminate  Liability  as  rtiiiier.  —  Whether  the  giv- 
ing of  such  notice  of  ari'ival  be  an  absolute  dut}-  imposed  upon 
the  carrier  or  not,  there  can  be  no  doubt  that  when  a  vessel 
has  completed  her  voyage,  and  reached  the  port  of  delivery, 
or  when  the  carrier  by  rail  has  reached  the  station  to  which 
the  goods  are  consigned,  such  cai'rier,  whether  by  land  or 
water,  cannot  be  held  liable  for  the  care  and  safe  keeping  ot 
the  goods,  as  carrier,  at  the  option  of  the  consignee.  It  would 
be  imposing  an  unconscionable  burden  upon  them  to  say  that 
they  had  no  means  by  wiiich  they  might  put  an  end  to  the 
transit  of  the  goods,  short  of  personal  delivery  to  the  consignees 
at  their  several  places  of  business,  unless  such  places  of  busi- 
ness were  at  a  convenient  wharf  or  dock,  or  upon  the  immedi- 
ate line  of  the  railway.  It  has  accordingly  been  held  that  carriers 
of  this  class  may  exonerate  themselves  from  such  liability, 
by  giving  reasonable  notice  to  the  consignee  of  the  arrival  of 
the  articles  transported.'^ 

§  564.  Reasonable  Time  for  Removal  after  Knowledge  of  Ari'ival. 
And  even  when  there  is  no  direct  notice  from  the  carrier  to 

'  Simons  v.  Great  West.  Kailw.  Co.,  37  Eng.  L.  and  Eq.,  286;  London  & 
N.  W.  Railw.  Co.  o.  Dunliam,  18  C.  B.,  826. 

'-' Cliickering  «.  Fowler,  4  Pick.,  371 ;  Northern  ®.  Williams,  6  La.  An., 
578.  The  Ship  Grafton,  OlcoU's  R,  43;  Stowe  v.  N.  Y.,  Bost.  &  Prov.  R.  K. 
Co.,  113  Mass.,  521 ;  Robinson  v.  Chittenden,  14  N.  Y.,  Sup.  Ct.,  133. 


253  noticf:  by  which  LiArur.rriKS  extinguished. 

the  consignee  that  the  goods  have  arrived,  but  knowledge  of 
such  fact  is  brought  lionie  to  him,  from  whatever  source  de- 
rived, the  carrier  could  only  be  held  liable  until  the  consignee 
had  a  reasonable  time  within  which  to  remove  the  goods,  after 
knowledge  of  their  arrival.^ 

§  565.  Classification  of  Conflicting  Authorities.  —  The  rule  as  to 
the  duty  of  carriers  to  give  notice  of  the  arrival  of  goods,  is 
by  no  means  so  uniform  as  that  requiring  the  consignee  to  act 
at  his  peril  upon  such  notice  when  given.  Judge  Cooley  in 
rendering  the  opinion  of  the  court  in  McMillan  v.  Michigan 
Southern  &  Northern  Indiana  Railroad  Company,^  divides  the 
conflicting  authorities  upon  this  question,  as  respects  carriers 
by  railroad,  into  three  classes.  1.  Cases  where  it  is  held  that 
the  liability  of  the  carrier  ceases  at  the  terminus  of  the  route 
and  the  unloading  of  the  goods,  regardless  of  the  giving  of 
notice,  or  the  time  of  removing  the  property.  2,  Such  as 
hold  the  carrier  liable  after  arrival  of  the  goods,  and  a  reason- 
able time  for  the  consignee  to  remove  them,  but  requiring  the 
consignee  to  take  notice  of  such  arrival.  3.  Those  cases 
where  it  is  held  that  the  carrier's  liability  continues  until 
notice  to  the  consignee,  and  a  reasonable  time  thereafter  to 
enable  him  to  take  possession  of  the  goods.  In  the  course  of 
the  opinion  the  learned  judge  takes  uccasion  to  say:  "I  am 
unable  to  discover  any  ground,  which  to  me  is  satisfactory,  on 
whicli  a  common  carrier  of  goods  can  excuse  himself  from 
personal  delivery  to  the  consignee,  except  by  that  which  usage 
has  made  a  substitute.  To  require  him  to  give  notice  when 
the  goods  are  received,  so  that  the  consignee  may  know  when 
to  call  for  them,  imposes  upon  him  no  unreasonable  burden.'*^ 
A  brief  review  of  the  authorities  will  show  that  this  question 
is  decided  so  differently,  in  different  localities,  that  the  attempt 
to  reconcile  tliem  must  be  utterly  futile. 


'  Norway  Plains  Co.  v.  Boston  &  M.  R.  R.  Co.,  1  Gray,  263. 
» 16  Midi.,  79. 
'Ih.,  108. 


LIMITING    LIABILITY    OF    CARRIERS.  253 

§  566.  Massachusetts,  Illinois,  Iowa.  —  In  the  State  of  Massa- 
chusetts the  doctrine  is  laid  down,  wliere  goods  shipped  by 
raib'oad  and  not  called  for  on  their  arrival  at  the  place  of 
destination,  are  unloaded  and  separated  from  the  goods  of  other 
consignees,  and  are  stored  in  suitable  warehouses  or  depots 
provided  by  the  carriers  for  tlieir  protection,  that  then  the 
duty  of  the  proprietors  of  the  road,  as  carriers,  is  at  an  end. 
They  have  performed  tlieir  entire  contract.  They  have  received 
and  transported  the  goods  to  their  destination,  and  the  con- 
signee not  being  present  to  receive  them,  they  have  been  stored 
in  safety,  whence  the  consignee  may  take  them  in  a  reasonable 
time.^  The  same  doctrine  is  declared  in  a  later  case  by  the 
same  court,  where  it  is  said  that  the  carrier's  responsibility  ends 
when  the  goods  are  taken  from  the  car  and  placed  on  the  plat- 
form; that  if  on  account  of  the  unseasonable  hour  of  their 
arrival,  or  for  other  cause,  the  owner  is  not  present  to  receive 
them,  they  are  stored  in  the  railroad  company's  warehouse, 
the  liability  assumed  is  that  of  warehousemen,  and  they  will 
only  be  held  responsible  for  injury  or  loss  through  the  negli- 
gence of  the  depositaries.  The  doctrine  that  in  order  to 
exonerate  themselves  from  their  liability  as  carriers,  railroad 
corporations  were  required  to  give  notice  to  the  arrival  of 
goods,  was  expressly  denied.^ 

§  567.  Modification  of  the  Rule  in  3Iasi«achusetts.  —  The  doctrine 
of  the  case  last  cited  as  to  the  termination  of  the  carrier's 
liability,  is  somewhat  modified  by  later  cases  decided  in  the 
same  State,  wherein  it  is  held  that  the  duty  of  the  common 
carrier  by  rail,  with  reference  to  the  goods  transported,  includes 
unloading  them  with  care,  and  if  not  delivered  at  once,  storing 
them   in  a  suitable  and  safe  place  for  future  delivery;  but 

'Thomas  v.  Boston  &  Providence  R  R.  Co.,  10  Mete.,  472;  Lanil).  v. 
Western  E.  R.  Co.,  7  Allen,  98.  See  also  Porter  v.  Chicago  &  R.  I.  R.  R., 
20  111.,  407;  Riehards  v.  M.S.  &  North  Ind.  R.  R., /d.,  404;  Chicago  & 
Alton  R.  R.  Co.  v.  Scott,  42  111.,  132;  Merchants'  Disp.  Tr.  Co.  v.  Ilallock, 
(i4  III,  284;  Mohr.  v.  The  C.  &  N.  W.  R.  R.  Co.,  40  la.,  570;  Rothschilds  v. 
M.  C.  R.  R.  Co.,  69  111.,  164. 

» Norway  Plains  Co.  v.  Boston  &  Me.  R.  R.,  1  (!ray,203. 


254:  NOTICK    r,Y    WHrOlI    LIABILITIES    EXTINGL'lSllED. 

notice  of  arrival  is  not  held  requisite,  nor  is  the  liability  of 
the  railroad  company  for  loss  or  damage  occurring  otherwise 
than  by  the  negligence  of  its  servants,  at  any  time  after  such 
storage,  admitted  in  either  case.^ 

^  508.  New  Jersey,  Vermont,  Reasonable  Time  to  Remove.  —  In 
Morris  &  Essex  Railroad  Co.  v.  Ayres,~  the  distinction  made 
between  the  rule  governing  carriers  by  wagon,  carriers  by 
water  and  carriers  by  rail,  is  that  the  first  is  required  to  make 
personal  delivery  at  the  consignee's  place  of  business,  the 
secoiKl,  from  the  fact  that  such  personal  delivery  would  be 
impracticable  for  them,  are  bound  to  give  notice  of  the  arrival 
of  the  vessel  containing  the  goods;  while  the  third,  although 
incapable  of  delivering  the  goods  to  the  consignee  at  his  own 
door  or  place  of  business,  is  not  required  to  give  such  notice, 
because  of  the  regularity  of  the  arrival  of  the  trains.  Their 
duty  as  carriers,  however,  is  said  to  cease  with  their  having 
the  goods  safely  housed  and  ready  for  delivery,  alloivhig  a  rea- 
sonable time  for  the  owner  or  consignee  to  remove  them.  The 
same  doctrine  as  to  carriers  by  rail,  is  perhaps  more  clearly 
and  comprehensively  stated  by  Judge  Kellogg,  in  Blumenthal 
V.  Brainard,^  where  it  is  said  that  their  responsibility  as 
carriers  "continues  after  their  arrival  at  the  place  of  destiua- 
tion,  until  they  are  ready  to  be  delivered  at  the  usual  place  of 
delivery,  and  the  owner  or  consignee  has  had  a  reasonable 
opportunity,  during  the  hours  when  such  goods  are  usually 
delivered  there,  of  examining  them,  so  far  as  to  judge  from 
their  outward  appearance  of  their  identity,  and  whether  they 
are  in  a  proper  condition,  and  to  take  them  away  ;  and  that  it 
is  the  duty  of  the  owner  or  consignee,  under  the  contract  of 
carriage,  to  take  notice  of  the  course  of  business  at  the  station 
of  delivery,  and  of  the  time  of  the  arrival  of  the  train,  when 
his  goods  may  be  expected  at  the  place  of  destination,  and  to 
be  ready  to   receive  them   in  a   i-easonable  time  after    their 

'Session  v.   WesU^n   Railroad  Corj).,    16  Gray,    132;  Rice  o.  Boston   & 
'   Worcester  Railroad  Corp.,  98  Ma^s.,  212. 
-29  N.  J.  (Law j,  393. 
^  38  Vt.,  402—13. 


LIMITI.XU    LIABILITY     OF    CAKKIEKS.  255 

•arrival,  and  wlieu  hi  the  coininoii  course  of  business  they  may 
fairly  be  expected  to  be  ready  for  delivery." 

^'  569.  Additional  Authorities.  — •  Other  cases  cited  in  support 
of  the  foregoing  doctrine  do  not  necessarily  involve  the  ques- 
tion of  notice,  but  favor  holding  the  carrier  to  the  fall  extent 
of  his  liability  as  such,  not  onl}-  until  the  goods  have  reached 
their  destination,  and  are  ready  for  delivery,  but  until  the 
owner  or  consignee  has  had  a  reasonable  opportunity  to  take 
thetn  away}  In  neither  of  the  cases  cited  was  the  question  ot 
notice  necessary  to  be  determined.  In  both  instances  the 
goods  were  unladed  at  so  late  an  hour  in  the  day  that  it  would 
have  been  impossible  to  remove  them,  and  before  the  ware- 
house where  they  were  stored,  was  opened  for  their  delivery, 
the  goods  were  lost.""^ 

§  570.  New  York,  Michigan,  Texas,  Ncav  Hanii)shire,  Notice  Re- 
quired.—  In  the  State  of  J^ew  York,  the  rule  may  be  regarded 
as  settled  in  perfect  harmony  with  the  views  of  Judge  Cooley 
in  McMillan  v.  Mich.  Soutli.  &  North.  Ind.  K.  R.  Co.^^  In 
the  case  of  McDonald  v.  The  Western  Kailroad  Corp.,''  it  is 
laid  down  that  notice  to  the  owner  or  consignee,  of  the  arrival 
'of  the  goods,  and  a  reasonable  time  and  opportunity  to  remove 
them  after  such  notice,  will  come  in  lieu  of  the  personal  deliv- 
ery required  of  carriers  by  wagon,  in  order  to  change  the  char- 
acter of  the  liability  from  that  of  carrier  to  the  less  onerous 
responsibility  of  warehouseman.  This  doctrine  is  accepted  in 
other  states.^ 

§  571.  Carriers  by  Water — Notice  Required.  —  When  the  car- 
riage is  by  water,  the  rule  seems  more  uniform,  except  as  mod- 
ified or  aftected  by  local  custom.  The  doctrine  that  notice  to 
the  consignee  is  necessary  to  exonerate  the  carrier,  whose  duty^ 
so  far  as  actual  transportation  is  concerned,  is  limited  to  car- 
rying the  property  from  port  to  port,  is  (piite  generally  recog- 

'  Moses  v.  Boston  &  Mo.  K.  R.  Co.,  :32  N.  H.,  523;  Wood  o.  Crocker,  18 
Wis.,  ;Mo. 
''  licilf.  on  Kailw.,  ;i  is;5,  •;  U. 
« IG  Mich.,  79 ;  cited  Ante  i  .Vi"). 
*:MN.  Y.,  497. 
•atnith  V.  Nashua  &  L.  K.  R.,  '27  N.  ir.,H6;  Morgan  «.  Dibbh-,  20  Tex.,  107. 


256  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

Hized  iu  this  country;  in  fact,  may  be  said  to  be  the  acknowl- 
edged rule  in  all  the  states,  unless  the  principles  laid  down  in 
tlie  Massachusetts  cases  cited  may  be  regarded  as  in  conflict.^ 
§  572.  Comparison  of  Conflicting  Views.  —  The  rule  adopted  iu 
some  of  the  states,  holding  the  carrier  by  rail  to  the  full  meas- 
ure of  accountability  as  carrier,  until  a  reasonable  time  has 
elapsed  for  removal,  is  certainly  founded  upon  better  reasons 
and  supported  by  higher  authority,  than  the  doctrine  by  which 
the  goods  are  held  at  the  risk  of  the  consignee,  barring  the 
carrier's  gross  negligence,  from  the  moment  they  are  removed 
from  the  cars.  The  latter  doctrine  proceeds  upon  the  anoma- 
lous theory  that  the  carrier,  upon  receiving  the  goods,  enters 
into  an  undertaking,  not  only  to  transport  them  as  a  common 
carrier,  but,  when  they  have  reached  their  destination,  to  store 
and  hold  them  as  a  warehouseman.  The  opposite  doctrine 
recognizes  the  possible  impracticability  of  removing  the  goods 
immediately  upon  their  arrival,  and  continues  the  carrier's 
accountability  until  the  consignee  or  owner  may  have  an 
opportunity,  in  the  usual  course  of  business,  to  take  them  into 
his  own  possession.  But  both  doctrines,  as  regards  the  ques- 
tion of  notice,  are  founded  upon  an  assumed  regularity  and 
punctuality  in  the  arrival  of  freight  trains,  and  the  supposi- 
tion that  the  owner  or  consignee  of  chattels  shipped  as  freight 
have  received  antecedent  information  that  the  property  would 
arrive  by  a  particular  train.  Were  this  uniformly  true,  there 
could  be  little  difficulty  in  reconciling  some  of  the  decisions 
which  seem  so  conflicting.  But  where  large  quantities  of 
freight  are  delivered  to  the  carrier,  and  he  is  unable  to  for- 
ward the  same  promptly,  in  order  to  enable  the  consignee  to 
anticipate,  with  any  degree  of  certainty,  the  arrival  of  goods 
shipped  as  freight,  the  consignor,  or  some  one  acting  at  the 
place  of  shipment,  would  be  compelled  to  take  notice  of  the 
actual  loading  of  the  property  and  the  departure  of  the  train. 

'  Price  V.  Powell,  3  IST.  Y.,  322 ;  Fiske  v.  iSTewton,  1  Den.,  45 ;  The  Mary- 
Washington,  Cliace,  Dec,  125;  Smith  ».  Nashua  R.  R.  Co.,  27  N.  H.,  69; 
Rome  R.  R.  ij.  Sulivan,  14  Ga.,  277;  Houston  <fc  Tex.  Cent.  Railw.  Co.  v. 
Hodde,  42  Tex.,  467;  Union  SteainlK)at  Co.  c.  Kuapp,  73  111.,  506. 


LIMITING    LIABILITY    OF    CAEKIKRS,  257 

This  is  a  duty  which,  we  have  seen,  is  not  incumbent  upon 
shippers.^  The  goods  are  in  the  possession  of  the  carrier,  and 
his  liability  as  such  commences  from  the  time  they  are  deliv- 
ered to  him  for  present  forwarding,  whether  the  actual  transit 
commences  at  once  or  on  a  subsequent  day.  The  consignor, 
therefore,  cannot  ordinarily  advise  the  consignee  with  certainty, 
tliat  the  goods  were  placed  upon  a  certain  train,  which  departed 
on  a  certain  day,  and  would  arrive  on  a  certain  day.  Any 
such  information  from  him,  unless  he  goes  out  of  his  way  to 
obtain  it,  must  be  a  matter  of  guess  work.  If,  as  is  usual,  the 
duty  of  forwarding  the  goods  is  intrusted  to  the  carrier,  any 
advice  as  to  their  arrival  would  properly  come  from  him. 
Should  the  carrier  so  advise  the  owner  or  consignee,  the  latter 
would  have  notice,  and  there  would  no  longer  be  room  for 
controversy.'^ 

§  573.  Rule  Requiring  Notice  Preferred.  —  For  the  reason, 
therefore,  as  so  well  expressed  by  Judge  Cooley,  in  the  case 
heretofore  cited,^  that "  the  man  who  sends  his  goods  hy  rail- 
road, and  who  desires  to  receive  them  as  soon  as  they  reach  their 
destination,  has  commonly  no  design  to  employ  the  railroad 
company  in  any  other  capacity  than  that  of  carrier,"  and  for 
the  further  reason  that  the  duty  of  giving  notice  of  arrival 
would  be  light  compared  to  that  of  keeping  constant  watch 
upon  the  movements  of  freight  trains;  and  because  the  knowl- 
edge of  this  simple  duty  is  much  more  easily  communicated 
to  a  few  common  carriers,  so  that  they  may  regulate  their 
business  accordingly,  than  it  would  be  to  bring  home  to  every 
one  to  whom  property  might  be  transported  by  rail,  knowledge 
of  the  opposite  regulation;  and  on  account  of  the  impolicy  of 
removing  the  incentives  to  diligence  and  care,  in  selecting 
officers  and  servants  of  prudence  and  integrity,  by  corporations 
controlling   large  quantities  of    the  property  of  individuals 

'  Ante  §  453.  et  seq. 

'  Opinion  of  Judge  Breese,   in  Chicugo  «k  Alton  R.  K.  Co.  o.  Scolt,  43 
Ills,  138. 
'16  Mich.,  105. 

17 


258  NOTICE'  BY    ^VHICir    LIABILITIES    EXTINGUISHED. 

entrusted  to  them,  as  well  as  on  account  of  the  analogy  between 
carriage  by  rail  and  by  water,  the  better  doctrine  is  that  which 
continues  the  carrier's  liability  as  special  insurer  until  due 
notice  or  knowledge  of  the  arrival  of  the  goods  is  brought 
home  to  the  owner  or  consignee,  and  a  reasonable  time  there- 
after, during  business  hours,  within  which  to  remove  them.^ 

§  574.  Conflict  Explained  by  Difference  in  Local  Customs.  — The 
only  ground  uj^on  which  the  conflicting  decisions  of  different 
courts,  upon  this  question,  can  be  reconciled  in  order  to  ren- 
der them  consistent  with  the  same  method  of  reasoning,  is  by 
taking  into  account  the  different  circumstances  and  the  differ- 
ent customs  of  those  communities  whose  courts  rule  adversely 
to  each  other.-  The  courts  of  any  particular  state  may  have 
settled  the  law  in  a  manner  suitable  to  their  own  condition, 
and  in  view  of  the  peculiarities  surrounding  their  local  rail- 
road traffic,  while  in  another  state  an  opposite  conclusion  may 
be  reached  for  the  reason  that  this  method  of  transporting  goods 
is  more  or  less  certain  and  regular,  as  there  carried  on. 

§575.  Rule  Affected  by  Custom.  —  A  local  custom  of  the 
place  of  delivery,  of  which  the  consignee  or  owner  has  notice, 
may  very  materially  modifj^  or  enlarge  his  rights  with  respect 
to  notice  of  the  arrival  of  goods,  whether  carried  by  water, 
rail,  or  by  wagon.  ^ 

§  576.  Waiver  and  Excuse.  —  The  duty  of  giving  such  notice 
is  not  so  impei'ative  that  it  may  not  be  waived  by  contract,  or 

'Green  &c  Navigation  Co.  v.  Marshall,  48  Ind.,  596 ;  Houston  &  Texas 
Cent.  Railw.  Co.  v.  Hodde,  42  Tex.,  467 ;  Rawson  v.  Holland,  47  How., 
(X.  Y.),  Pr.,  293;  Erskine  v.  Steamboat  Thames,  6  Mo.,  371;  The  Tybee,  1 
Wood,  358;  Fenuer  v.  Buffalo  &  State  Line  R.  R.  Co.,  44  K  Y.,  505;  The 
Mary  Washington,  Chace,  Dec,  125;  Price  «.  Powell,  3  N.Y.,  322;  The 
Paytona,  2  Curtis,  21. 

•■'  Smith  V.  Nashua  Railroad,  27  N.  H.,  69 ;  Gibson  v.  Culver,  17  Wend., 
305;  Ostrander  v.  Brown,  15  Johns  ,  .39;  Chicago  &  Rock  Island  R.  R.  Co., 
1J.  Warren,  16  111.,  502;  Rome  R.  R.  iv  Sulivan,  14Ga.,  277;  Hill  ?).  Hum- 
phreys, 5  Watts  &  Scrg.,  123;  W\ch.  Cent.  R.  R.  Co.  v.  Ward,  2  Mich.,  538; 
Kohn  V.  Packard,  3  La.,  224;  Quiggin  v.  Duff,  1  M.  &  W.,  174;  Augell  on 
Carriers,  g  313 ;  Hyde  v.  Navigation  Co.,  5  T.  R.,  389. 

'The  Tylee,  1  Wooils,  358;  The  Richmond,  1  Biss.,  49;  Farmers' A: 
Mechs.  Bank  v.  Champlain  Trans.  Co.,  16  Yt.,  52;  Huston  v.  Peters,  1  Met. 
(Ky  .),558. 


LIMITING    LIABILITY    OF    CARRIERS,  259 

even  by  the  contract  of  the  owner  or  consignee.  And  like 
every  other  kind  of  notice,  the  party  required  to  give  it  may  be 
excused  from  doing  so.  Thus,  where  the  consignee  of  the 
goods  had  within  sixteen  days  prior  to  their  arrival,  taken  up 
her  abode  about  four  miles  distant  from  the  place  of  desti- 
nation, prior  to  which  time  she  had  resided  in  another  state, 
and  no  notice  was  given  to  the  railroad  company  or  any  of  its 
officers  of  her  place  of  residence,  which,  upon  reasonable 
inquiry,  they  were  unable  to  ascertain,  the  property  being 
destroyed  by  fire  while  in  the  company's  warehouse,  after  a 
reasonable  time  for  its  removal,  it  was  held  that  the  company 
was  only  liable  as  warehousemen,  and  the  loss  being  through 
no  fault  of  theirs,  they  were  discharged  from  all  responsibility.^ 
So  the  carrier  has  been  excused  from  giving  notice  to  such 
consignee  when  he  resided  at  a  considerable  distance  from  the 
place  of  destination,  and  no  one  was  present  when  the  goods 
arrived  to  receive  them  or  take  notice  of  their  arrival.'^ 

§  5T7.  Reasonable  time  for  Removal. — What  has  been  said  with 
reference  to  "reasonable  time,"  suggests  the  question — What 
time  would  be  considered  reasonable,  in  order  to  allow  of  the 
removal  of  property  from  the  possession  of  the  carrier  at  the 
place  of  delivery?  This  is  a  question  of  fact  which  can  receive 
no  definite  answer  here,  because  there  is  no  rule  of  law  govern- 
ing it,  more  certain  than  that  it  will  depend  upon  the  circum- 
stances and  the  business  customs  of  the  place  of  deliveiy.  But 
it  is  not  to  be  understood  that  the  time  allowed  to  a  consignee 
or  owner,  after  notice,  to  claim  the  goods,  may  be  materially 
enlarged  or  extended  by  circumstances  affecting  him  in  a  man- 
ner peculiar  and  distinct  from  that  in  which  other  residents 
of  the  place  are  affected.  Neither  the  special  emergencies  of  his 
own  private  business,  nor  any  misfortune  which  might  befall 
him  in  particular,  by  which  he  would  be  prevented  from 
responding  to  the  notice  as  promptly  as  might  be  reasonably 

'Pelton  V.  Rensselaer  «fc  Saratoga  R.  R.  Co.,  54  N.  Y.,  214;  The  Mary 
"Washington,  Chace,  Dec.,  125. 

'  Northrop  v.  Syracuse  B.  &  N.  Y.  R.  R.  Co.,  3  Ab5.  App.  Dec.  (N.  Y.). 
380;  Feuner  v.  Butlalo  &  State  Line  R.  R.  Co.,  44  N.  Y.,  505. 


260  NOTICE    BY    WHICH    LIABILITIES    EXTINGDISIIED. 

expected  from  other  residents  of  the  vicinity,  could  he  urged 
as  an  excuse  for  his  delay,  so  as  to  affect  the  question  of  the 
reasonableness  of  the  time  of  notice.^  ISTor  could  the  distance 
of  his  residence  or  place  of  business  from  the  station,  dock  or 
wharf,  where  freight  is  discharged,  make  any  material  differ- 
ence in  this  respect.  The  time  in  general  legarded  as  reason- 
able would  be  such  as  might  in  reason  and  justice  be  deemed 
sufficient  for  any  resident  of  the  vicinity,  to  come  for  the  goods 
with  the  usual  appliances  for  cartage  or  drayage,  to  be  had 
under  ordinary  circumstances.^  To  enter  into  a  nice  computa- 
tion of  the  exact  distance  between  the  owner's  or  consignee's 
residence  and  the  station  or  wharf  where  the  goods  are  to  be 
delivered,  in  every  instance,  and  to  inquire  narrowly  into  the 
time  required  to  travel  over  such  distance,  could  result  in 
nothing  but  confusion.  The  vague  generality  of  the  rule  can 
only  be  reduced  to  certaintj'  and  uniformity,  by  a  line  of 
decisions,  such  as  have  sufficed  under  the  law  merchant,  to 
settle  definitely  the  period  within  which  notice  of  the  dis- 
honor of  commercial  paper  must  be  given, ^ 

J  Moses  V.  B.  &  M.  R.  R.,  32  N.  H.,  532,  541. 

"  Ihid. 

3  See  Ch.  VI.,  Pt.  III. 


LANDLORD    AND    TENANT.  261 


III.  Landlord  and  Tenant. 


§578.  Notice  to  Quit — Reciprocal  Right. 

579.  Division  of  Subject. 

580.  Statutory  Provisions. 

581.  Nature  of  Tenancy  Requiring  Notice. 
583.  From  Year  to  Year. 

583.  Growing  out  of  Possession  under  Contract. 

584.  Occupancy  with  Owner's  Consent. 

585.  Holding  over  Term. 

586.  Lease  Void  under  Statute  of  Frauds, 

587.  Implied  Agreement  Sufticieul. 

588.  When  Payment  of  Rent  not  Essential. 

589.  Possession  by  Mortgagor  after  Forfeiture. 

590.  General  Tenancy  at  Will. 

591.  Termination  of  Strict  Tenancy  at  Will. 

592.  Mere  Occupant  not  Entitled  to  Notice. 

593.  Contract  to  Purchase  after  Original    Trespass  will  not  Entitle  to 

Notice. 
694.  Trespasser  Negotiating  for  Lease  not  Entitled  to  Notice. 

595.  Bail  ill  or  Servant  of  Owner  not  Entitled  to  Notice. 

596.  Tenancy  not  Created  by  Plolding  over  Term. 

597.  Tenant  for  Life  of  Another  not  Entitled  to  Notice. 

598.  Contesting  Landlord's  Title  not  Entitled  to  Notice. 

599.  Grantee  of  Mortgagor  not  Entitled  to  Notice. 

600.  Tenancy  at  Will  or  bj'  Suflerance. 

601.  Payment  of  Rent  without  Tenancy. 

602.  Owner  of  Premises  may  Elect. 

603.  Holding  over  Under  Agreement  for  New  Lease. 

604.  Proof  of  Tenancy  from  Year  to  Year. 

605.  Burthens  and  Benetits  equally  Divided. 

606.  Increase  of  Rate. 

607.  Time  of  Notice. 

608.  Time  Regulated  by  Stiitule. 

609.  Notice  must  E.xpire  at  Commencement  of  New  Term. 

610.  Tenancy  by  the  Quarter. 

611.  Tenant  from  Month  to  M(mth. 

612.  Principal  and  Accessorial  Subject   of  Demise. 
ai'd.  The  Diflerent  Kinds  of  Uncertain  Tenancies. 


262  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

614.  Circimstances  by  which  it  may  be  Determined. 

615.  By  whom  Notice  Given. 

616.  Joint  Lessees  or  Lessors. 

617.  Partners. 

618.  One  Giving  Notice  as  Agent  of  Co-Tenant. 

619.  Agent  must  have  Authority  at  tlie  Time. 

620.  Agency  must  Extend  to  the  Duty  Undertaken. 

621.  When  Authority  Inferred. 

622.  Notice  by  Corporation. 

623.  By  Receiver. 

624.  When  by  Tenant. 

625.  When  by  Landlord. 

626.  To  Whom  Given. 

627.  Joint  Tenants — Tenants  in  Common — Partners. 

628.  Notice  to  Corporation. 

629.  Form  and  Sufficiency. 

630.  Address  of  Written  Notice. 

631.  What  Notice  to  Contain. 

632.  Statement  of  Cause  Required. 

633.  Time  Mentioned  in  General  Terms. 

634.  Tenant  from  Week  to  Week. 

635.  Must  not  Demand  Possession  "Forthwith." 

636.  Undue  Strictness  not  Required. 

637.  Description. 

638.  Substantial  Accuracy  Alone  Required. 

639.  Illustration  of  Foregoing. 

640.  Service  of  Notice, 

641.  May  be  Waived. 
642-  "Voluntary  Surrender. 

643.  Parol  Surrender  and  Acceptance 

644.  Otfering  to  Let  not  Waiver. 

645.  Parol  Surrender  must  go  into  Immediate  Effect. 

646.  Verbal  License  to  Surrender  Tenancy  from  Year  to  Year  Inopera- 

tive. 

647.  Defects  in  Notice  may  be  Waived. 

648.  Waiver  of  Rights  under  Notice. 

649.  Will  not  be  Presumed  from  Acceptance  of  Rent  by  Unauthorized 

Person. 

650.  Mere  Permission  to  Remain  after  Notice— No  Waiver. 


§  578.  Notice  to  Quit — Reciprocal  Right.  —  One  of  the  most 
familiar  modes  by  whicli  the  rehitioii  of  landlord  and  tenant 
may  be  severed  is  by  a  notice  from  one  to  the  other,  of  an 
intention  to  terminate  the  tenancy.     This  is  what  is  known  as 


LANDLORD    AND    TENANT.  263 

a  notice  to  quit,'  and  where  the  circumstances  and  relations  of 
the  parties  render  such  notice  necessary,  it  becomes  a  recipro- 
cal right,  or  the  correlative  dutj  of  either  party,  as  he  may 
desire  to  perpetuate  the  relation,  or  seek  to  terminate  it.  Nei- 
ther the  landlord  nor  the  tenant  can  be  summarily  deprived  of 
his  rights  under  the  tenancy  without  due  notice.^ 

§  579.  Division  of  Subject.  —  The  order  in  which  the  several 
branches  of  the  subject  will  be  here  presented  is  as  follows  : 
1.  What  cases  of  tenancy  render  such  notice  necessary  in  order 
to  terminate  them,  and  what  kinds  of  tenancy  may  be  termi- 
nated without  notice.  2.  The  time  of  giving  notice  to  quit. 
3.  By  whom  given.  4.  To  whom  given.  5.  Its  form  and  suf- 
ficiency. 6.  The  manner  and  mode  of  service.  1.  Waiver 
and  excuse. 

§580.  Statutory  Provisions.  —  The  character  of  the  tenancy 
entitling  either  the  landlord  or  the  tenant  to  insist  upon  the 
continuance  of  the  I'elation,  until  terminated  by  notice  from 
the  other  party,  is,  to  a  very  great  extent,  affected  by  local 
legislation.  It  is  not  intended  here  to  follow  closely  the  capri- 
cious changes  and  modifications  of  the  common  law,  for 
the  purpose  of  showing  with  particularity  the  kinds  of 
tenancy  requiring  notice  in  each  state.  It  will  be  sufficient 
to  point  out  the  common  law  rule,  and  its  application  to  par- 
ticular cases,  and  to  set  out  the  principles  of  a  general  nature 
applicable  alike  to  tenancies  at  common  law  and  under  local 
statutes. 

§581.  Nature  of  Tenancy  Requiring  Notice.  —  The  cases  in 
which  notice  is  required  can  be  included  in  no  general  descrip- 
tion better  than  what  would  be  understood  by  tenancies  of 
uncertain  duration.  The  most  common  example  being  a 
tenancy  from  year  to  year,  to  be  renewed  or  termiiuited  at  the 
option  of  either  party,  vni\\  the  end  of  any  year.  The  reason 
given  for  the  rule  requiring  notice  in  order  to  terminate  such 
a  tenancy,  is  that  it  would  be  contrary  to  the  contract  to  turn 
the  tenant  out  in   the  middle  of  the  year,  and  so,  if  he  be 

•Hall  V.  Wailswoitb,  28  Vt.,  410;  Barlow  v.  Wainriglit,  22  Vt.,  88. 


204  NOTICE    BY    WHICH    LIABILITIKS    EXTINGUISHED. 

allo^V'e(l  to  hold  over,  it  may  fairly  be  inferred,  from  the  land- 
lord's acquiescence,  that  he  intends  to  continue  the  lease  for 
another  year.^ 

§582.  From  Year  to  Year. — And  so,  where  premises  were 
leased  for  the  term  of  one  year,  and  aii  indefinite  period  there- 
after, at  a  fixed  annual  rent,  and  under  this  lease  the  tenant 
entered  and  occupied,  this  was  a  tenancy  from  year  to  year; 
and  the  tenant  dying,  his  interest  in  the  realty  passed  as  a 
chattel  to  his  personal  representatives,  who  thereby  became 
tenants  from  year  to  year,  and  liable  as  such,  to  the  payment 
of  the  yearly  rent  until  they  discharged  themselves  from  the 
obligation  by  giving  notice  of  their  intention  to  terminate  such 
tenancy."^ 

§  583.  Growing"  out  of  Possession  under  Contract.  —  So,  also, 
where  one  comes  into  possession  under  a  contract  for  a  lease, 
or  a  contract  to  purchase,  and  there  is  subsequent  payment  of 
rent,  this  will  be  held  sufiicient  to  create  a  tenancy  from  year 
to  year,  which  can  only  be  terminated  by  notice."''  And  in 
one  case,  where  the  party  entering  under  such  a  contract  of 
purchase  had  not  paid  rent,  he  was  held  to  be  a  tenant  from 
year  to  year,  and  entitled  to  notice  to  quit  before  he  could  be 
ejected.^  There,  however,  the  situation  of  the  parties  with 
reference  to  the  property  was  cxce]>tional.  The  covenantor 
who  forcibly  dispossessed  the  covenantee,  for  non-payment  of 
the  purchase  money,  was  unable  to  show  title  in  himself,  but 
claimed  that  the  purchaser  was  estopped  fVom  denying  his 
ownership  upon  the  familiar  ground  tliat  the  tenant  would  not 


'  Logan  V.  Hem)u,8  Serg.  &  R.,  45!);  Bedford  v.  McElheiron,  2  Id.,  49; 
Doe  V.  Stennett,  2  Esp.,  716;  Mosliier».  Reding,  12  Me..  478;  Dea  v.  Adams, 
12  N.  J.  (Law.),  99;  Doe  v.  Walts,  7  D.&  E.,  83;  Cobb  v.  Stokes,  8  East, 
358:  Grant  v.  White,  42  Mo.,  285;  4  Kent's  Com.,  111-114. 

-'Pugsley  V.  Aiken,  11  N.  Y.,  494. 

•'And  so  held  where  the  payment  of  rent  was  by  the  montli,  but  the  for- 
mer tenancy  was  by  the  year,  tbough  the  administrator,  whose  control 
ceased  at  tlie  end  of  the  year,  promised  that  thereatler  the  tenancy  should 
be  from  montli  to  month.  The  coutj-act  extendeil  beyond  tlic  duration  of 
his  authority.     Burbank  ».  Dyer,  54  Ind.,  239. 

*  Moshier  v.  Reding,  12  Me.,  478. 


LANDLORD    AXn    TKNANT.  265 

l»e  lieard  to  dispute  his  landlord's  title.^  After  tlius  assuiiiiiii!; 
the  position  of  landlord  for  his  own  advantage,  he  could  not 
be  heard  to  deny  the  relation  between  himself  and  tenant,  for 
the  reason  that  the  latter  entered  under  a  contract  of  purchase, 
instead  of  a  lease. 

§  584.  Ofciipaiicy  witli  Owner's  Consent.  —  There  seems  no 
doubt  that  an}'  sort  of  occupancy  of  the  premises,  with  the 
consent  of  the  owner,  where  the  latter,  b}'  his  acts,  or  even 
by  silent  acquiescence,  recognizes  the  occupancy  as  held  under 
himself,  for  a  period  of  uncertain  duration,  except  in  certain 
cases  of  tenancy  at  will  or  h\  sufferance,  to  be  noticed  here- 
after, would  create  between  the  parties  the  relation  of  landlord 
and  tenant,  and  entitle  each  to  notice  of  its  determination. 

§585.  Holding  over  Term. — Where  the  tenancy  to  be  termi- 
nated by  notice  arises  by  the  tenant's  holding  over  after  the 
e.xpiration  of  the  original  term,  there  is  the  same  reason  for 
the  rule  as  to  notice  to  quit,  whether  the  original  term  be  for 
one  year,  or  a  shorter  period.  If  a  tenancy  under  lease  for 
one  year  be  convertible  into  a  tenancy  from  year  to  year,  by  the 
continuance  of  the  tenant's  occupancy  after  the  expiration  of 
his  term,  with  the  implied  consent  of  the  landlord,  by  the 
same  rule,  a  tenant  for  one  quartei-,  or  one  month,  would  in 
case  of  holding  over  be  regarded  for  the  purposes  of  notice,  as  a 
tenant  from  quarter  to  quarter,  or  from  month  to  month,  as 
the  case  may  be.^  But  this  character  of  occupancy  is  generally 
reo-ulated  bv  statute  according  to  the  nature  and  situation  of 
the  property  held.  Where  the  property  is  used  only  for 
asrricultural  purposes,  requiring  a  yearly  letting  in  order  to 
render  it  available  for  the  tenant's  use,  and  the  duration  of 
gnch  tenancy  is  rendered  uncertain  by  the  expiration  of  the 
original  term,  and  the  continued  occupancy  of  the  premises, 
the  subsequent  holding  is  regarded  as  under  an  implied  agree- 
ment running  from  year  to  year.     Where,  however,  the  prem- 

'  ScoTiiylor  on  Lundlonlaud  Tenant,  §629. 

'Biunicnbiirf,^  v.  Myres,  32  (Jal.,  1)3,  OO;  Wilkinson  v.  Hall,  3  Ring.  (New 
Cases),  508,  530. 


266  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

ises  are  situated  in  a  city  or  village,  in  the  absence  of  sucli  a 
lease*  as  the  statute  prescribes,  or  such  express  terms  as  may 
be  necessary  to  limit  the  duration  of  the  tenancy  to  a  specific 
period,  it  is  treated  as  running  for  a  shorter  term,  in  general 
from  month  to  month.-' 

§586.  Lease  Void  Uiider  Statute  of  Frauds.  —  A  tenant  hold- 
ing under  a  lease,  void  under  the  statute  of  frauds,  may  for  the 
purposes  of  notice  be  regarded  as  a  tenant  from  year  to  year. 
Thus,  where  a  parol  lease  of  land  was  made  for  a  term  of 
years,  at  a  stated  rent,  although  by  the  statute  declared  to  be 
a  tenancy  at  will,  its  terms  would  regulate  the  rent  to  be  paid, 
and  the  time  of  year  when  the  tenant  is  to  quit  the  possession 
of  the  premises,  and  before  the  landlord  can  maintain  eject- 
ment, or  other  proceeding,  to  regain  possession,  he  will  be 
required  to  give  notice  to  quit.^ 

§587.  Implied  Agreement  Sufficient.  —  It  is  not  essential,  in 
order  to  establish  the  relation  of  landlord  and  tenant,  so  as  to 
require  notice  to  terminate  it,  that  possession  of  the  premises 
should  be  taken  under  a  positive  agreement  of  any  sort.  A 
subsequent  payment  of  rent  will  be  sufHcient  to  create  such 
a  tenancy  as  to  property  occupied  by  a  tenant  for  years  beyond 
the  boundaries  of  the  land  included  in  his  lease." 

§588.  When  Payment  of  Rent  not  Essential. — But  the  pay- 
ment of  rent,  in  the  absence  of  an  exjjress  agreement,  has  not 
always  been  regarded  by  the  courts  as  essential  to  the  creation 
of  a  tenancy  from  year  to  year.  Thus,  where  it  appeared  tliat 
the  tenant  had  taken  possession  of  the  premises  with  the  con- 
sent of  the  owner,  who  died  during  such  occupancy,  and  the 
tenant,  while  in  possession,  made  improvements,  but  paid  no 

'Spraguei).  Qnin,  108  Mass.,  553;  Prindle  v.  Anderson,  19  Weud.,  391; 
Coffin  V.  Lunt,  2  Pick.,  70;  Ellis  v.  Paige,  Id.,  71,  note. 

"  Thurber  v.  Dwyer,  10  R.  I.,  355 ;  Barlow  v.  Waiuright,  22  Vt.,  88;  Silsby 
r.  Allen,  43  Vt.,  172;  Gleason  v.  Gleason,  8  Cusli.,  32;  Doe  v.  Bell,  5  T.  R., 
471:  Clayton  v.  Blakey,  8  T.  R,  3;  Schuyler  v.  Leggett,  2  Cow.,  660;  and 
Ko  where  the  tenancy  is  under  a  lease,  void  as  being  made  by  an  agent  iu 
his  own  name;   Murray  v.  Armstrong,  11  Mo.,  209. 

*  Jackson  v.  Wilsey,  9  Joh.ns.,  267. 


LANDLORD    AND    TENANT.  267 

rent,  nor  was  any  reserved  by  the  landlord  in  his  lifetime,  it 
was  held  that  the  tenant  could  not  be  summarily  dispossessed 
without  notice.^ 

§  589.  Possession  by  Mortgagor  After  Forfeiture.  —  So  where 
there  is  a  common  law  mortgage  of  the  premises,  and  the 
mortagor  is  permitted  by  the  mortgagee  to  remain  in  pos- 
session without  any  express  agreement  as  to  the  term  for 
which  he  shall  occup}',  except  as  fixed  by  the  maturity  of  the 
obligation  thereby  secured,  the  mortgagor  has  been  regarded 
by  high  authoritj^,  as  in  possession  under  such  an  implied 
agreement  as  to  entitle  him  to  be  considered  as  a  general  ten- 
ant at  will,  and  as  such,  entitled  to  notice  to  quit.^ 

§  590.  General  Tenancy  at  Will.  —  The  relation  upon  which 
the  right  to  notice  depends,  is  recognized  as  existing  between 
the  landlord  and  tenant,  where  there  is  a  general  tenancy  at 
loill^  as  distinguished  from  a  striot  tenancy  at  will.  The  for- 
mer species  is  that  which  grows  out  of  the  tenant's  holding 
over  after  the  expiration  of  the  original  termf  an  entry  with 
the  consent  of  the  landlord  and  a  lease  rendered  void  by  the 
Statute  of  Frauds;^  the  occupancy  of  the  premises  for  an  indefi- 
nite period,  under  a  contract,  express  or  implied,  to  pay  rent;^ 
and  even  where  the  land  is  occupied  and  improved  by  the 
tenant  under  an  implied  agreem^ent  with  the  landlord,  from 
year  to  year,  without  the  special  reservation  of  rent.^ 

§  591.  Termination  of  Strict  Tenancy  at  Will. — Where  a  tenancy 
at  will  is  terminated  by  notice  from  tlie  landlord,  it  may  operate 
as  the  inception  of  a  tenancv  of  a  different  character.     Thus 

'  DcD  «.  MackaJ^  2  N.  J.  (Law),  419;  Jackson  v.  Laughliead,  2  .Tolins., 
75;  where  it  is  laid  down  generally  that  "no  person  who  holds  land  by 
another's  consent  for  an  Indefinite  period,  ought  ever  to  be  evicted  by  eject- 
ment at  the  suit  of  such  party,  without  previous  notice  to  quit."  See  also, 
Jackson  «.  Bryan,  1  Johns.,  322;  Jackson  «.  Green,  4  Johns.,  186;  Jackson 
v.  Niven,  10  Johns.,  So.^;  Bedford  v.  McElherron,  2  Serg.  &  R,  49. 

'Jackson  v.  Hopkins,  18  Johns.,  487. 

'  Ante  %  583,  587. 
•  Ante  §  588. 


268  NOTICE    BY    WlirOH    LIAHHJTIKS    KXTINGUISHED. 

wliere  a  tenant  strictly  at  will,  i-eceived  three  niontlis'  notice 
to  quit,  and  held  over  under  an  implied  agreement  for  rent, 
this  was  held  to  create  a  tenancy  from  year  to  year,  comraeu- 
cing  with  the  date  of  the  notice,  and  requiring  six  months' 
notice  prior  to  the  end  of  the  first  year  thereafter  to  entitle 
the  landlord  to  maintain  an  action  for  the  possession.^ 

§  592.  3Iere  Occupant  not  Entitled  to  Notice.  —  Where  the  rela- 
tion of  the  landlord  and  tenant  does  not  exist  between  the 
owner  of  the  fee  and  the  occupant  of  the  premises,  there  is 
no  necessity  for  notice  from  either  party.  This  relation  being 
one  arising  by  contract,  express  or  implied,  it  cannot  be  forced 
upon  either  party  against  his  will.  So  where  one  is  a  mere 
trespasser  upon  the  land  of  another,  he  is  not  entitled  to  notice 
to  quit.^     Xor  is  notice  necessarj-  where  the  term  is  fixed.^ 

§  593.  —  Contract  to  Purchase  after  Original  Trespass  will  not 
Entitle  to  Notice.  —  For  reasons  somewhat  different,  one  who 
obtains  possession  of  the  lands  of  another,  and  the  original 
trespass  is  practically  condoned  by  the  owner  of  the  fee,  who 
enters  into  a  treat}'  with  the  occupant  to  convey  the  land,  and 
it  is  subsequently  held  by  the  occupant  under  such  contract 
of  purchase,  this  will  not  create  the  relation  of  landlord  and 
tenant.''  There  being  no  express  promise  to  pay  rent,  it  could 
only  be  claimed  upon  the  ground  that  the  use  and  occupa- 
tion raised  an  implied  promise  to  that  effect.  But  where  there 
is  an  express  agreement  prov^en  as  the  foundation  of  the 
occupancy,  there  can  be  no  different  promise  implied  by  law. 
An  express  contract  of  purchase  being  sufficient  upon  which 
to  predicate  the  occupancy  by  the  covenantee,  he  enters  and 
holds,  not  as  a  tenant,  but  as  a  qua.si  owner.' 


'  Jiradley  v.  Covel,  4  Cow.,  349. 

"  Taylor  on  Land,  and  Ten.,  ^  468 

'  Youns  V.  Smith,  28  Mo.,  65. 

*. Jackson  v.  French.  ;'>  Wend.,  3;J7. 

*  Harris  v.  Frink,  2  Lans.  N.  Y.,  85;  Tucker  u.  Adams,  52  Ala.,  254;  Car- 
penter V.  United  States,  17  Wall.,  48!>;  S.  C,  6  Ct.  CI.,  156;  Doe  ».  Baker,  2 
Dev.,  270;  Smith  v.  Stewait,  6  .Tohns.,  46;  Jackson  v.  Moncrief..  5  Wend., 
26;  Doe  V.  Sayer,  3  Camp.,  8;  (Jhisscock  v.  linbuds,  14  Mo..  850.     But  see 


LANDLORD    AND    TENANT.  269 

§  594.   Trespasser  Negotiating  for  Lease  not  Entitled  to  Notice.— 

Upon  similar  grounds  to  the  above,  where  one  obtained  pos- 
session of  a  house  without  the  privity  or  consent  of  the  owner, 
and  afterwards  entered  into  negotiations  for  a  lease,  but  the 
parties  failing  to  agree,  the  negotiations  never  ripened  into  a 
contract,  it  was  properly  held  that  this  did  not  establish  between 
the  parties  the  relation  of  landlord  and  tenant,  and  that  the 
latter  might  be  dispossessed  without  antecedent  notice  to  quit.^ 

§  595.  Bailiff  or  Servant  of  Owner  not  Entitled  to  Notice.  — 
Mere  possession  with  the  consent  of  the  owner  does  not  create 
this  relation,  even  when  such  possession  is  under  no  express 
contract  of  purchase.  The  occupant  may  hold  the  possession 
as  the  servant  or  bailiff  of  the  tenant  in  fee.  As,  in  the  case 
of  Jackson  v.  Sample,"-  where  the  land  had  been  occupied  for 
some  twenty  years  under  a  written  agreement  by  the  occupant 
to  "  hold,  keep  and  preserve  the  possession,"  &c.,  of  the  land 
in  question  "  to  and  for"  the  owner  and  his  lieirs,  it  was  held 
that  such  occupancy  would  not  raise  any  implication  of  such 
a  contract  as  would  entitle  the  occupant  to  notice  from  tlie 
owner  to  quit  the  possession.^ 

§  596.  Tenancy  not  Created  by  Holding  over  Ternu  —  Holding 
over  after  the  expiration  of  the  term  originally  fixed  by  con- 
tract does  not  in  every  instance  create  such  a  general  tenancy 
at  will  as  will  entitle  the  occupant  to  notice  to  quit.  Thus 
where  the  original  term  is  for  one  year,  notice  not  being 
required  to  terminate  the  tenancy,  it  comes  to  an  end  with 
the  expiration  of  the  year,  and  primarily,  the  tenant  by  con- 
tinuing in  possession,  becomes  a  wrong-doer,  and  may  be 
summarily  dispossessed.  In  order  to  give  such  tenant  the 
status  of  a  rightful  occupant  of  the  premises,  there  must  be  a 

Jackson  v.  Rowan,  9  Johns.,  3-30,  where  it  is  held  that  one  enterin":  under 
a  contract  of  purchase  cannot  be  treated  as  a  wroni;-  doer  and  ejected  with- 
out notice  or  demand;  also  Right  v.  Beard,  !;>  Ea.st,  210. 

'  Doe  V.  Quigley,  3  Camp.,  505;  Grant  v.  White,  42  Mo.,  285. 

''  1  Johns.  Cas.,  231. 

^  Doe  V.  Watts,  7  D.  &  E.,  83;  Cobb  v.  Stokes,  8  East,  358;  Jackson  v. 
Parkhurst,  5  Johns.,  128;  Williams  v.  Deriar,  31  Mo.,  13. 


270  NOTICE    BY    WflTCH    LIABILITIES    EXTINGUISHED, 

subsequent  payment  of  rent,  or  other  recognition  of  sucli 
tenancy  by  tlie  landlord.  The  tenant  cannot  by  sheer  force  of 
his  own  obstinacy  in  refusing  to  surrender  at  the  expiration 
of  the  term,  enlarge  the  character  of  his  tenancy.^  And  even 
where  the  tenant  had  held  over  for  two  years,  during  which 
time  the  owner  remained  silent,  this  was  held  insufficient  to 
raise  the  presumption  of  his  consent  to  such  holding  over  on 
the  terms  of  the  original  lease.^ 

§  59T.  Tenant  for  Life  of  Another  not  Entitled  to  Notice,  — 
Under  a  statute  by  which  a  tenant  at  sufferance  was  entitled 
to  one  month's  notice  to  quit,  it  was  held  that  a  tenant  for  the 
life  of  another,  holding  over  after  the  death  of  cestui  que  vie, 
was  not  entitled  to  any  notice  whatsoever,  but  might  be  ejected 
as  a  trespasser.^ 

§598,  Contesting  Landlord's  Title  not  Entitled  to  Notice.  —  So 
a  tenant  who  undertakes  to  defeat  his  landlord's  title  by  attorn- 
ment to  a  stranger,  or,  while  in  possession,  accepts  a  convey- 
ance in  fee  from  one  who  claims  adversely  to  the  party  under 
■whom  such  tenant  holds,  is  not  entitled  to  notice,  but  may  be 
dispossessed  upon  demand  and  refusal  to  surrender,  as  any 
other  wrong-doer.^ 

§  599.  Grantee  of  Morta^aj^or  not  Entitled  to  Notice.  —  We  have 
seen  that,  as  between  the  moi"ta:ac;or  and  the  mortgag-ee,  the 
former  is,  when  in  possession,  in  the  absence  of  express  stipu- 
lations to  that  effect,  such  a  tenant  at  will  as  to  be  entitled  to 
notice  to  quit.^  But  where  the  mortgagor,  in  possession  under 
such  implied  tenancy  at  will,  makes  an  absolute  conveyance  to 
another,  his  grantee  does  not  succeed  to  his  rights  with  respect 
to  notice.^  The  reason  given  by  the  learned  judge  who  ren- 
dered the  opinion  in  this  case,  for  this  distinction,  was  that 
"  the  sale  itself  is  an  act  of  disloyalty."     There  must  be  a 

'Aliens.  Jaquish,  21  Wend.,  638;  Rowan  v.  Lytle,  11  Wend.,  616. 

■  Den  V.  Adams,  12  K  J.,  Law,  99;  Smith  v.  Littk'tield,  51  X.  Y.,  539. 

"Livingston  v.  Tanner,  14  N.  Y.,  64. 

*  Sliarpe  d.  Kelley,  o  Den  ,  431 ;  Clarke  v.  Crego,  47  Barber  (N.  Y.),  599. 

'  Ante  S  589. 

'Jackson  v.  Hopkins,  IS  .Tohiis.,  487. 


LANDLORD  AND  TENANT,  271 

privity  of  estate  between  the  owner  and  the  occupant  to  enti-  • 
tie  the  former  to   notice,  which   is   wholly  wanting  where  he 
conies  in  by  purchase  from   the   mortgagor,  who  himself  was 
at  most  a  tenant  at  will.'' 

§  600.  Tenancy  at  will  or  by  SnflFerance.  —  For  similar  reasons, 
the  same  rule  applies  to  a  tenant  from  year  to  year,  coming  in 
under  the  mortgagor,  after  the  date  of  the  mortgage.  He  is 
a  tenant  at  will  in  the  strictest  sense,  or  a  mere  tenant  by  suf- 
ferance. He  cannot  be  said  to  hold  under  the  morto-ao-ee 
unless  the  latter  recognizes  his  possession  in  the  most  une- 
quivocal manner,  as  by  acceptance  of  rent,  or  some  similar 
act,  equally  significant  in  its  import,  by  which  it  may  be 
inferred  that  there  is  an  acceptance  of  the  tenant  in  lieu  of 
the  mortgagor.^ 

§  601.  Tenancy  by  the  Quarter.  —  As  we  have  seen,  the  rule 
generally  recognized  with  reference  to  a  tenant  holding  over 
after  the  expiration  of  his  term,  is  that,  if  such  holding  is 
with  the  consent,  express  or  implied,  of  his  landlord,  it  cre- 
ates a  general  tenancy  at  will,  which  can  only  be  terminated 
by  notice  ;^  and  that  the  subsequent  payment  of  rent  furnishes 
the  strongest  evidence  of  an  implied  agreement  between  the 
parties,  in  the  absence  of  proof  of  an  express  stipulation."* 
But  exceptional  cases  have  arisen,  where  the  occupant  of  the 
premises  has  been  permitted  to  remain  in  possession  with  the 
consent  of  the  owner,  and  on  payment  of  rent,  without  cre- 
ating such  a  tenancy  at  Mall  as  to  require  notice  to  terminate 
it.  Thus,  where  a  servant  was  occupying  the  master's  house, 
and  upon  a  termination  of  his  service,  was  permitted  to  con- 
tinue in  possession  until  the  condition  of  his  wife's  health  was 
such  as  to  admit  of  her  safe  removal,  this  was  regarded  as  a 

'  Jackson  v.  Stackhouse,  1  Cow.,  122. 

''Thunder  v.  Belcher,  3  East,  449;   Denn  v.  Rawlins,  10  East,2Gl;  Rock- 
well V.  Bradley,  2  Conn.,  1 ;  Den  v.  Bennett,  4  Ired.  (N.  C),  123. 
*  Ante  %  585,  et  seq. 
*Ante%  587. 


272  NOTICE    BY    WHICH    LIABILITIKS    EXTINGUISHED. 

mere  license,  depending  npau  a  future  contingent  eventj  and 
did  not  create  the  relation  of  tenant,  either  at  will  or  by  suf- 
ferance, and  notice  to  quit  was  held  unnecessary.^ 

§  602.  Owner  of  Premises  may  Elect.  —  Where  the  tenant  holds 
over  liis  term,  and  before  the  landlord  has  done  anything  by 
which  he  would  be  estopped  either  from  asserting  or  denying 
the  tenancy  at  will,  it  is  optional  with  him  whether  the  rela- 
tion of  landlord  and  tenant  shall  be  continued  between  them. 
He  may  have  extended  the  privilege  of  remaining  in  posses- 
sion as  a  mere  license,  depending  for  its  duration  upon  a  con- 
tingent future  event."'  Or  he  may  have  received  rent,  or 
done  some  other  act,  equally  expressive  of  his  assent  to  the 
continuation  of  the  tenancy,  in  either  of  which  events  he  will 
liave  parted  with  his  option  in  the  matter  for  the  time  being. 
But  when  the  end  of  the  term  is  reached,  and  nothing  is  said 
or  done  bj'^the  landlord,  the  tenant,  by  remaining  in  possession, 
has  thereby  given  expression  to  his  intentions  respecting  the 
tenancy,  and  it  remains  for  the  landlord  to  elect  to  hold  him 
for  a  new  term,  or  eject  him  as  a  trespasser.^  And  this  option 
is  not  affected  by  the  tenant's  refusal  to  accept  a  new  lease,  or 
otherwise  expressing  his  dissent,  subsequent  to  the  expiration 
of  his  term.^ 

§  603.  Holding  over  under  Agreement  for  New  Lease.  —  Where 
a  tenant  remains  in  possession  under  an  agreement  with  the 
landlord  for  a  new  lease,  whether  such  agreement  be  express 
or  implied,  not  only  does  this  create  a  tenancy  at  will  of  the 
character  requiring  notice  to  quit,  at  the  yearly,  quarterly,  or 
monthly  rate  of  his  original  term,  but  the  character  of  such 
tenancy  will  not  be  changed  by  the  landlord's  failure  to  carry 
out  an  agreement  to  make  repairs.  It  will  continue  an  estate 
at  will  until  such  lease  is  executed.^ 


'  Doyle  V.  Gibbs,  6  Laus.,  N.  Y.,  180. 

*  Svpra. 

=  Noel  V.  McCrory,  7  Coldw,  628. 

*  Schuyler  v.  Smith,  51  N.  Y.,  309. 

*  Emmons  v.  Scudder,  115  Muss.,  367. 


LANDLORD  AND  TENANT.  273 

§  GOi.  Proof  of  Tenancy  from  Year  to  Year.  —  When  tlie 
agreement  between  the  parties  for  a  continuation  of  the  re- 
lation of  landlord  and  tenant  for  an  indefinite  period,  is  bj 
express  stipulation,  it  is  proved  as  any  other  contract.  When 
it  rests  altogether  on  inference,  whether  there  is  an  implied 
contract  of  letting,  is  a  question  of  fact  for  the  jury.' 

§605.  Burthens  and  Benefits  Equally  Divided. — That  feature 
of  the  law  which  gives  the  landlord  his  election  to  hold  as  a  ten- 
ant at  will  one  who  holds  over  his  term,  or  to  treat  him  as  a 
trespasser,  seems  at  a  glance  to  give  the  landlord  an  undue 
advantage.  It  enables  him  to  increase  the  3'early  rent  over 
that  of  the  expired  term,  as  a  condition  of  his  assent  to  the 
continuance  of  the  tenancy,  without  giving  the  tenant  the 
corresponding  advantage  of  insisting  upon  a  reduction  of  the 
rate  as  a  condition  of  the  renewal  of  his  tenancy.  But  it 
must  be  remembered  that  the  holding  over  is  the  voluntary  act 
of  the  tenant.  It  will  be  seen  when  we  come  to  consider  the 
time  of  giving  notice,  that  with  respect  to  the  termination  of 
uncertain  tenancies,  the  rights  and  duties  are  divided  between 
landlord  and  tenant  with  tolerable  impartiality. 
V  §  606.  Increase  of  Rate.  —  When  there  is  a  tenancy  at  will, 
from  whatever  cause  it  has  arisen,  as  it  is  necessary  to  give 
notice  to  quit  for  a  certain  time,  depending  upon  the  length  of 
the  original  term,  it  would  seem  to  be  equally  requisite  to  give 
notice  for  the  same  time,  of  an  intention  to  demand  an 
iticrease  of  rent,  and  by  a  parity  of  reasoning,  for  the  tenant 
to  give  notice  for  the  same  time  of  an  intention  to  demand  a 
reduction;  for,  although  the  tenant  holding  for  a  term,  may, 
by  silently  holding  over,  be  bound  to  pay  an  increased  rent,  of 
which  he  has  received  notice  a  short  time  before  the  expiration 
of  his  term,^  the  case  would  necessarily  be  different  with  a 
tenant  whose  tenancy  can  only  be  terminated  by  notice.  In 
the  latter  case  his  continued  occupancy  could  not  be  inter- 

'  Cliamberlin  v.  Donahue,  44  Vt,  57. 

'Uuntr.  Bailey,  39  Mo.,2j7;  Adriance  v.  Hafkemeyer,  Id.,  134. 

18 


274  NOTICE   BY    WHICH    LIABILITIES   EXTINGUISHED. 

preted  as  an  assent  to  the  demand  of  the  landlord  for  the 
higher  rate. 

§  607.  Time  of  Notice.  — The  length  of  time  for  which  notice 
must  be  given  in  order  to  terminate  a  general  tenancy  at  will, 
depends  npon  the  character  of  the  tenancy,  whether  from  year 
to  year,  or  for  shorter  periods  with  indefinite  renewals.^  At 
common  law,  where  the  tenancy  is  from  year  to  year,  the  notice 
is  required  to  be  for  six  months;'^  and  by  " six  months  "  is 
meant  six  calendar  months,  or  half  a  year.^ 

§  608.  Time  Regulated  by  Statute.  —  But  even  where  statutory 
provisions  have  not  interposed  to  fix  a  difierent  time,  the  six 
months  rule,  with  respect  to  tenancies  from  year  to  year,  has 
not  been  universally  adopted  in  this  country  by  the  courts  of 
the  difierent  States.'*  Added  to  this  conflict  of  authority  as 
to  the  common  law  rule,  there  is  a  great  diversity  in  local 
statutes  varying  the  times  for  which  notice  must  be  given, 
from  three  months  to  fourteen  days,  which  statutes  are  subject 
to  annual  or  semi-annual  alteration. 

§  609.  Notice  must  Expire  at  Commencement  of  New  Term.  — 
But  the  question  of  time  relates  to  other  considerations  in 
connection  with  the  notice  to  quit,  than  that  of  the  number 
of  days  or  months  elapsing  between  the  giving  of  the  notice 
and  the  time  therein  fixed  for  the  vacation  of  the  premises. 
It  has  reference  to  the  date  of  giving  the  notice,  and  the  inter- 
vening time  between  that  and  the  end  of  the  year,  or  other 
period  of  holding  within  which  the  notice  is  given.  In  this 
respect,  the  rule  as  to  time  is  more  uniform.  It  is  not  sufiicient, 
where  six,  or  any  other  number  of  months'  notice  is  required, 
that  it  is  given  at  any  time,  and  to  expire  upon  any  day  which 
happens  to  suit  the  convenience  of  the  party  giving  it.  The 
notice  to  quit  at  the  end  of  six  months,  gives  the  tenant  the 
right  to  occupy  the  premises  for  that  time;  and  if  the  expira- 

'  Coffln  v.  Lunt,  2  Pick.,  70;  Ellis  5. Paige,  Id.,  71  (note);  Doe  v.  Scott,  6 
Bing.,  3G2;  Kemp  ^.  Derrett,  3  Camp.,  510. 
2  Right  V.  Darby,  1  T.  R.,  159. 

'  Doe  V,  Porter,  3  T.  R..  13 ;  Den  v.  Mclntosli,  4  Ired.,  201 ; 
*  Rising  V.  Stannard,  17  Ma=s.,  283 ;  Logan  v   Herron,  8  S.  &  R.,  459. 


LANDLORD    AND    TENANT.  275 

tion  of  the  notice  is  not  until  the  anniversary  of  the  com- 
mencement of  the  tenancy,  the  notice  will  be  ineffectual.^ 

§  610.  Tenancy  by  the  Quarter.  —  So,  where  the  tenancy  was 
from  three  months  to  three  months,  it  was  held  that  the  notice 
should  be  for  three  months  ending  at  the  close  of  any  quarter, 
reckoning  from  the  date  of  entry.  It  was  not  sufficient  that 
notice  to  quit  at  the  end  of  three  months  from  the  date  of  the 
notice,  was  given,  but  the  three  montlis  must  intervene  between 
the  date  of  the  notice  and  the  end  of  the  quarter.^ 

§611.  Tenant  from  Month  to  Month.  —  So  also  where  a  party 
entered  under  an  agreement  to  accept  a  lease  for  twenty 
months  and  subsequently  refused  to  accept  the  lease,  he  was 
held  to  be  a  tenant  at  sufferance,  and  on  the  payment  of  a 
month's  rent  subsequent  to  his  entry,  he  became  a  tenant  from 
month  to  month,  commencing  from  the  date  of  his  entry,  and 
to  dispossess  him,  the  landlord  was  required  to  show  one 
month's  notice  at  the  end  of  some  month,  reckoning  from  the 
date  of  entry .^  And  the  same  rule  is  applicable  to  a  tenancy 
from  week  to  week,'* 

§  612.  Princ'ii)al  and  Accessorial  Subject  of  Demise.  —  The  time 
of  giving  the  notice  is  occasionally  involved  in  uncertainty 
arising  from  circumstances  that  cast  doubt  upon  the  actual 
date  of  entry,  A  party  may  have  leased  the  premises  with 
the  right  of  entry  upon  a  portion  at  one  time  and  the  right  to 
enter  another  portion  at  another  time.  In  such  an  event  to 
ascertain  the  date  of  commencement  of  the  occupancy,  the 
question  to  be  determined  is,  which  of  these  two  portions  of 
the  property  was  the  principal  or  substantial,  and  which   the 

'Doe  B.Miller,  2  Car.  and  P,348;  Bay  State  Bank  v.  KWey,  U  Gray, 
492;  Hultain  v.  Munigle,  6  Allen,  220;  Doe  v.  Lea,  11  East,  312. 

°  Kemp  V.  Derrett,  3  Camp.,  510. 

=  Anderson  v.  Prindle,  23  Wend.,  616;  Doe  v.  Hazell,  1  Esp.,  94;  Pricket 
V.  Bitter,  16  111,  96;  Gunn  v.  Sinclair,  52  Mo.,  327.  It  is  held  in  some  cases 
■where  the  rent  is  payable  monthly  in  advance  that  notice  may  be  given  on 
the  first  of  the  month,  and  is  to  expire  on  the  first  of  the  month  next  ensu- 
ing.   Walker  v.  Sharpe,  14  Allen,  43. 

*  Doc  V.  Scott,  6  B'.ng.,  302. 


276  NOTICE    BY    WHICH    LIABILITIES    EXTIKGUISHED. 

accessorial  subject  of  demise.  This  has  l^een  held  to  be  a 
question  of  fact.^  However,  where  the  facts  ascertained  were 
that  the  tenant's  entry,  upon  all  that  portion  of  the  premises 
except  the  land  intended  for  tillage,  was  on  a  day  named  in 
the  lease,  but  he  was  allowed  to  enter  the  tillage  land  on  an 
earlier  day  in  order  to  plow,  it  was  concluded  as  a  matter  of 
law,  that  his  tenancy  commenced  with  his  subsequent  entry 
and  occupation  of  the  house  and  other  buildings,  and  not  from 
his  prior  entry  for  the  mere  purpose  of  plowing  the  tillage 
land.'^ 

§  613.  The  Different  Khuls  of  Uncertain  Tenancies.  — Although 
there  is  considerable  unanimity  among  authorities  as  to  the 
time  when  notice  to  quit  must  be  given,  and  when  it  should 
expire,  in  cases  where  the  character  of  the  tenancy  is  regarded 
as  the  same,  still  there  seems  to  be  some  contrariety  of  view 
as  to  the  kind  of  tenancy  created  by  a  particular  kind  of  hold- 
ing; that  is,  whether  it  be  from  year  to  year,  from  quarter  to 
quarter,  or  from  month  to  month.  The  reasonable  rule  is  laid 
down  in  Anderson  v.  Prindle,^  that  where  one  entei-ed  under 
a  parol  contract  to  lease  for  a  term  of  one  3'ear  and  eight 
months,  and  remained  in  possession  paying  rent  hy  the  months 
without  such  lease,  this  created  a  tenancy  from  month  to 
month.  The  effect  which  is  here  given  to  time  of  payment  of 
rent,  is  denied  in  a  case  decided  in  Missouri.*  Here  the  entry 
was  under  a  parol  lease  for  years,  admitted  to  be  void  under 
the  statute  of  frauds,  and  a  payment  of  rent  by  the  month;  it 
was  nevertlieless  held  to  be  a  tenancy  from  year  to  year.  In  the 
opinion  in  this  case,  an  earlier  case  by  the  same  court  is  cited 
with  approval,  but  there  nothing  is  disclosed  as  to  the  times 
of  paying  rent.^  It  is  held,  however,  in  Ridgely  v.  Stillwell,^ 
where  the  tenant  entered  and  paid  rent  l)y  the  month,  without 

>  Doe  V.  Howard,  11  East,  408. 

'  Doe  v.  Speuce,  6  East,  130;  Doe  ?;.  Wutk'ns,  7  East,  551. 

s  23  Wend.,  610. 

■»  Scully  V.  Murray,  34  Mo.,  420. 

'Kerr«.  Clark,  19  Mo.,  13 i. 

« 25  Mo..  570. 


LANDLORD    AND    TENANT.  277 

either  a  written  or  parol  lease,  or  contract  for  a  lease  for  any 
term  whatsoever,  that  this  was  constructively  a  tenancy  from 
year  to  year.  In  rendering  tlie opinion  the  learned  judge  says: 
"  So,  a  tenancy  from  month  to  month,  or  for  any  aliquot  part 
of  a  year,  may  be  created  by  express  contract,  or  perhaps  be 
implied  from  circumstances  ;  but  the  circumstance  that  I'ent 
is  payable  monthly,  or  quarterly,  or  yearly,  or  half  yearly, 
does  not  show  that  the  holding  is  not  yearly.  In  the  absence 
of  any  other  proof,  the  legal  presumption  remains  that  the 
tenancy  is  a  yearly  one."  The  question  raised  here  seems  to 
be  one  of  evidence,  and  it  is  decided  that  the  mere  payment 
of  rent  by  the  month,  in  the  absence  of  corroborative  cii'cnm- 
stances,  will  not  be  sufficient  to  prove  a  monthly  tenancy.  There 
are,  doubtless,  other  circumstances  of  a  more  convincing 
cliaracter  than  the  mere  recurrence  of  rent  day.  Neverthe- 
less, when  the  premises  are  held  for  a  period  of  uncertain 
duration,  whether  as  the  result  of  holding  over  the  original 
term,  entry  under  a  void  lease,  or  under  a  parol  contract  for  a 
lease  which  is  never  executed,  or  by  whatever  manner  tenancies 
at  will  of  this  sort  may  be  created,  when  there  is  no  stronger 
evidence  of  a  tenancy  from  year  to  year,  the  fact  that  the  rent 
is  paid  monthly  would  be  sufficient  to  carry  conviction  to  an 
ordinary  mind  that  the  holding  was  from  month  to  month. 

§  614.  Circumstances  by  which  it  maybe  Determined.  — But  the 
countervailing  circumstances  by  which  the  periodical  payment 
of  rent,  as  evidence  of  the  periods  from  which  the  premises 
are  rented,  may  be  overcome,  are  seldom  wanting  M'hen  the  pay- 
ment of  the  rent  does  not  fairly  express  the  will  of  the  parties. 
The  habits  and  customs  of  the  locality;  the  general  con- 
duct of  the  parties,  with  reference  to  the  property,  and  above 
all,  the  nature  of  the  subject  of  demise,  and  the  manifest  use 
for  which  it  was  intended,  would  all  have  a  bearing  upon  the 
question  of  the  length  of  the  term  for  which  the  premises 
were  occupied.  It  would  be  difficult  to  believe  that  one  would 
occupy  a  farm  as  tenant  from  montli  to  month,  or  for  any 
term  shorter  than  a  year,  even  though  the  rent  were  paid  by 
the  month  or  by  the  quai'ter.     Where  to  occupy  the  premises 


278  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

profitably  or  comfortably  it  became  necessary  to  make  exten- 
sive improvements,  or  to  set  up  cumbersome  and  expensive 
machinery,  and  the  premises  were  let  with  a  view  to  the 
making  of  all  necessary  changes,  the  payment  of  rent  by  the 
month  would  hardly  be  sufficient  evidence  of  a  monthly 
tenancy. 

§  615.  By  whom  Notice  Given.  —  It  having  been  already  stated 
that  the  notice  to  quit  may  and  should  be  given  by  either 
landlord  or  tenant,  in  the  event  that  a  termination  of  the  ten- 
ancy is  desired  by  either,^  it  only  remains  to  show,  with  respect 
to  the  party  from  whom  notice  should  come,  how  circum- 
stances may  render  a  notice  to  quit  valid,  which  does  not  pro- 
ceed directly  from  the  one  in  whose  behalf  it  is  given.  The 
circumstances  by  which  any  other  than  direct  notice  is  author- 
ized are  chiefly  such  as  grow  out  of  the  relations  between 
parties  as  joint  tenants,  tenants  in  common,  co-partners,  or 
principal  and  agent. 

§  616.  Joint  Lessees  or  Lessors.  —  As  to  the  effect  of  notice 
from  one  or  two  or  more  joint  lessors  or  lessees,  or  from  any 
number  less  than  all,  upon  the  opposite  ])arty,  there  is  some 
conflict,  but  the  weight  of  authority  seems  to  be  that  such 
notice  must  come,  either  directly  or  indirectly,  from  all,  in 
order  to  be  binding  upon  the  party  notified,  as  to  the  entire 
interest  represented  by  the  opposite  parties.^  Thus  where  a 
notice  to  quit  was  given  by  two  of  three  joint  lessors,  it  was 
held  insufficient  to  terminate  the  entire  tenancy,  so  as  to  enable 
the  three  lessors  to  join  in  summary  proceedings  ;  although  it 
would  be  sufficient  as  to  the  interests  of  those  srivinor  the 
notice.^  And  tenants  in  common,  whether  lessors  or  lessees, 
would  possess  no  greater  authority  with  respect  to  the  inter- 
ests of  each  other  than  would  joint  tenants. 

§  617.  Partners.  — Where,  however,  the  joint  lessors  or  lessees 
are  partners  in  trade,  and  the  subject  of  the  demise  is  partner- 

'  Ante  §  578. 

"Rights.  Cuthell,  5  East,  491;  Doe  «  Chaplin,  3  Taunt,  120;  Goodtitle 
V.  Woodward,  3  B.  &  Aid.,  G89;  Contra,  Doe  v.  Summersett,  1  B.  &  Ad.,  135. 
3  Pickard  v.  Perley,  45  N.  H.,  18 i 


LANDLORD    AND    TENANT.  279 

ship  property,  they  are  placed  upon  a  different  footing,  with 
respect  to  their  relative  rights,  from  that  occupied  by  ordinary 
joint  tenants  or  tenants  in  common.  Notice,  therefore,  by  one 
in  the  firm  name,  would  be  sufficient  to  bind  the  partners.'^ 
The  reason  why  it  is  so  strongly  insisted  that  the  notice  must 
come  from  the  party  whose  rights  are  sought  to  be  enforced 
thereby,  is  that  the  party  notified  is  entitled  to  a  notice  upon 
which  he  can  act  with  safety. 

§  618.  One  Giving  Notice  as  Agent  of  Co-Tenant.  —  But  even 
when  the  co-tenants  in  whose  names  the  notice  is  given  do  not 
sustain  towards  each  other  the  relation  of  partners,  notice 
from  one  will  be  sufficient,  if  given  in  the  name  and  by  author- 
ity of  his  co-tenants.^  Where  a  notice  is  given  by  one  joint 
tenant  or  tenant  in  common,  for  himself  and  co-tenants,  it 
derives  its  force  and  validity,  not  by  reason  of  the  co-tenancy, 
but  from  the  special  authority  conferred  upon  the  acting  party. 
He  acts  as  the  agent  of  the  otliers,  and  his  exercise  of  author- 
ity will,  in  all  essential  respects,  rest  upon  the  general  doctrine 
of  agency. 

§  619.  Agent  must  have  Authority  at  the  Time.  —  Nevertheless, 
there  is  one  essential  difference  between  notices  to  quit,  given 
by  an  agent,  and  notices  of  a  general  character  communicated 
by  tlie  same  means.  In  general,  where  notice  is  given  by  one 
in  the  name  of  another,  and  the  pretended  agent  acts  without 
authority  previously  conferred,  such  acts  may  be  rendered 
valid  and  binding  by  a  subsequent  ratification  of  the  assumed 
agency,  by  the  party  in  whose  behalf  the  notice  was  given.' 
So  far  from  this  being  the  prevalent  doctrine  respecting  the 
kind  of  notices  under  consideration,  it  is  generally  laid  down 
that,  as  the  rights  and  duties  of  the  party  notified  dej^end 
upon  the  validity  of  the  notice  to  quit,  to  be  effectual  fur  the 
purpose  of  determining  the  tenancy,  it  must  be  given  by  one 


'  Doc  V.  Ilulme,  2  Mann.  &  Uy.,  43'1 
'Taylor,  Land.  &  Ten.,  i^  479. 
2  See  Fost.,  Ch.  V.  Pt.lII. 


280  NOTICE    BY    WHICH    LIABILITIES    EXTIXGUISUED. 

possessing  authority  when  he  gives  snch  notice,  or  whoso  net 
is  ratified  by  the  principal  at  the  proper  time  for  giving  it.^ 
If  unauthorized  when  given,  it  de])ends  upon  subsequent  rati- 
fication for  its  life,  and  unless  ratified  a  sufficient  time  before 
the  period  fixed  for  quitting,  the  party  so  notified  will  not 
have  the  notice  to  which  he  is  by  law  entitled. 

§620.  Agency  must  Extend  to  the  Duty  Undertaken.  —  "Where 
notice  is  given  by  one  as  agent  of  another,  it  is  not  sufficient 
that  there  should  be  subsisting  between  them  the  relation  of 
principal  and  agent.  The  agency  must  extend  to  the  particu- 
lar duty  undertaken,  or  the  notice  will  be  as  ineffectual  as 
though  coming  from  any  other  intermeddler.  Thus,  where 
an  agent  appointed  merely  for  the  purpose  of  collecting  rents, 
undertakes  to  dispossess  a  tenant  by  notice  to  quit,  the  latter 
is  neither  bound  to  recognize  such  notice,  nor  can  he  safely 
take  advantage  thereof,  in  order  to  terminate  the  tenancy.'^ 

§  621.  When  Authority  Inferred.  —  When  the  one  giving  the 
notice  has  been  clothed  with  authority  to  let  the  premises,  and 
is  depended  uj)on  by  the  owner  to  provide  suitable  tenants,  his 
authority  to  give  notice  to  any  particular  tenant,  to  quit, 
might  reasonably  be  inferred.  And  when  the  tenant  is  repre- 
sented by  an  agent  whose  duty  it  is  to  provide  premises  suita- 
ble for  the  purposes  of  his  principal,  the  tenancy  may  be 
terminated  by  notice  from  him,  but  notice  from  an  agent  of  an 
agent  will  not  be  recognized  without  the  principal's  approval.^ 

§622.  Notice  by  Corporation. — When  the  notice  is  given  on 
behalf  of  a  corporation,  it  seems  almost  needless  to  say  that  it 
should  come  from  an  officer  of  such  corporation ;  and  whether 
the  giving  of  such  notice  falls  within  the  scope  of  his  author- 
ity or  not,  the  tenancy  may  be  thereby  terminated  if  the  act 
be  approved  in  time  by  the  corporation.'* 

'Doe  V.  Walters,  10  B.  &  C,  n2G;  PickarJ  v.  Perley,  45  N.  H..  188;  Doe 
V.  Goldwin,  1  G.  &  D.,  463;  Bralin  v.  .Jersey  City  Forge  Co.,  38  N.  J.  L.,74; 
Post  Ch.  v.,  Pt.  III. 

^  Doe  V.  Mizem,  2  Mood.  &  R.,  56. 

^Doe  V.  Robinson,  SBing.  N.  C,  677. 

*  Roe  V.  Pierce,  2  Camp.,  96. 


LANDLORD    AND    TENANT.  2S1 

§  623.  By  Receiver.  —  A  receiver,  appointed  by  a  court  of 
chancery,  to  take  charge  of  real  estate,  with  general  authority 
to  let  lands  from  year  to  year,  does  not  act  with  respect  to  the 
property  committed  to  his  charge  in  the  capacity  of  an  agent 
of  the  owner,  but  as  an  officer  of  the  court,  and,  under  his 
general  anthority,  may  terminate  the  tenancy  by  notice  to 
quit,  given  in  his  official  capacity.^ 

§624.  When  by  Tenant. —  Where  the  notice  is  to  the  land- 
lord, it  should  come  from  liis  immediate  tenant  or  his  tenant's 
assignee,  between  whom  and  himself  there  is  some  privity  of 
contract  or  estate.  The  notice  could  not  properly  come  from 
the  under  tenant  to  the  landlord,  though  his  tenancy  might 
be  affected  by  notice  passing  between  the  tenant  under  whom 
he  holds,  and  the  owner  of  the  i'eer 

§  625.  When  by  Landlord.  —  Where  the  notice  is  from  the 
landlord,  it  musi  be  given  to  his  immediate  tenant,  or  to  the 
assignee  of  such  tenant,  for  the  same  reason  expressed  in  the 
next  preceding  section,  with  respect  to  notice  from  the  tenant 
to  the  landlord.  And  it  is  not  important  that  the  tenant  to  be 
notified  be  in  actual  possession  of  tlie  premises  at  the  time  the 
notice  is  given.  If  he  continues  to  pay  the  rent,  notice  shonld 
be  giv^en  to  him,  though  the  premises  be  occupied  by  another.^ 

§626.  To  whom  Given. — Although  notice  from  the  landlord 
should  be  given  to  the  one  recognized  as  his  immediate  tenant, 
and  not  to  one  who  is  simply  a  sub-lessee  or  under-tenant, 
from  the  mere  fact  that  the  latter  is  the  only  one  in  actual 
possession  of  the  premises,  yet  where  the  tenant  who  origi- 
nally entered  nnder  the  landlord  has  abandoned,  or  given  up 
the  possession,  and  another  has  entered  and  occupies  appar- 
ently in  the  same  manner  and  to  the  same  extent  as  his  pre- 
decessor, he  may  be  treated  by  the  landlord  as  assignee  of  the 
original  tenant,  and  served  with  notice  to  (^uit.'*     Wlicre  the 


'  Doe  V.  Read,  12  East,  57. 

^  Pleasant  v.  Benson,  14  East,  234;  Taylor  on  Land,  and  Ten.,  ?  481. 

'Tuckers.  Baker,  10  Johns.,  270. 

'Doe  V.  Williams,  G  B.  &  C,  41 ;  Doe  v.  Murless,  6  M.  &  S.,  110. 


2S2  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

tenant  undertakes  to  put  an  end  to  the  tenancy  by  notice,  it 
must  be  given  to  his  immediate  landlord,  or  the  one  to  whom 
he  pays  rent,  or  his  agent.  If  it  be  an  under-tenant,  his  pur- 
pose will  not  be  accomplished  by  giving  notice  to  the  owner  of 
the  premises,  or  one  under  whom  his  own  landlord  holds  as 
tenant.'^ 

§627.  Joint  Tenants — Tenants  in  Common — Partners.  —  It  has 
been  laid  down  that  where  two  or  more  are  in  possession  of  the 
premises  as  joint  tenants  or  tenants  in  common,  a  notice  ad- 
dressed to  all  and  served  upon  one  would  raise  a  presumption 
that  the  notice  reached  his  co-tenants;^  and  it  has  even  been  held 
that  a  verbal  notice  to  one  of  two  joint  tenants  would  suffice  to 
terminate  the  tenancy  as  to  both.^  But  it  is  difficult  to  see  why 
tenants  in  common,  or  joint  tenants,  should  be  affected  by 
notice  given  to  a  co-tenant  under  circumstances  where  they 
would  not  be  affected  either  to  their  advantage  or  disadvantage 
by  a  notice  proceeding  from  the  same  co-tenant,  without  their 
authority.*  There  can  be  no  doubt,  however,  that  where  the 
parties  to  be  notified  are  jointly  interested  in  the  subject  of 
the  demise,  either  as  lessors  or  lessees,  and  are  partners  with 
respect  to  the  property,  that  notice  to  one  would  be  notice  to 
all,  especially  where  the  notice  was  given  ostensibly  to  both  or 
all  of  such  partners. 

§  628.  Notice  to  Corporation.  —  A  corporation,  whether  as 
landlord  or  tenant,  can  only  be  reached  with  notice  through  its 
authorized  officers.  But  it  might  mislead,  to  say  that  the 
notice  should  be  to  the  officer,  though  he  is  unquestionably 
the  proper  one  to  serve.  There  may  be  several  officers  either 
of  whom  could  accept  service  of  the  notice,  but  the  notice 
should  be  given  to  the  corporation  itself;  that  is,  it  should  be 
addressed  to  the  corporate  body  and  not  to  its  official  repre- 
sentative.^ '' 

'  Taylor  on  Land,  and  Ten.,  g  4S1. 

-  Doe  v.  Watkins,  7  East,  551 ;    Taylor  on  Laud,  and  Ten.,  §  4S1. 

'  Doe  V.  Crick,  5  Esp.,  196. 

^  See  Ante  §  616,  et  seq 

"  Ibid  ;  Doe  v.  Woodman,  8  East,  228. 


LANDLORD    AND    TENANT.  2S3 

§  629.  Form  and  Sufficiency.  —  As  to  what  is  necessary  to  con- 
stitute a  notice,  sufficient  in  form,  the  requirements  of  the 
common  law  are  not  verj  exacting.  It  maj  be  verbal  or  writ- 
ten,' though  in  this  respect,  there  have  been  such  statutory 
cRanges  of  the  law  that  now  the  notice  is  generally  required  to 
be  in  writing.^ 

§  630.  Address  of  Written  Notice.  —  Much  that  has  reference 
to  the  form  and  sufficiency  of  a  notice  to  quit  has  already 
been  suggested  in  treating  of  the  time  of  giving  notice,  and 
hy  whom  and  to  whom  it  should  be  given.  Where  the  notice 
is,  as  is  generally  required,  in  writing,  it  should,  of  course,  be 
addressed  to  the  party  to  be  aftected  thereby,  and  should  be 
properly  signed  by  the  party  giving  it,  or  in  his  name,  by  his 
agent; but  slight  and  unimportant  errors  or  omissions  in  these 
respects  will  not  destroy  its  effect.  It  is  of  more  importance 
that  the  notice  should  go  to  the  right  party,  than  that  it  should 
be  properly  addressed  to  him. 

§  631.  What  Notice  to  Contain.  —  Whether  the  notice  be  given 
under  the  provisions  of  a  statute,  or  as  required  at  common 
law,  it  would  not  be  sufficient  should  it  fail  to  express  with 
reasonable  exactness  the  day  on  which  the  premises  are  required 
to  be  vacated;  for  although  the  law  requires  that  notice  shall 
be  given,  to  go  into  effect  at  a  particular  time,  as  at  the  end  ot 
the  year,  the  quarter,  or  the  month,  it  is  essential  that  the 
notice  should  itself  be  sufficiently  specific  to  designate  the  date 
of  its  expiration.^ 

§  632.  Statement  of  Cause  Required.  —  When  the  notice  is 
given  to  a  tenant,  under  a  statutory  provision  for  non-payment 
of  rent,  which  may  be  for  a  shorter  time  than  that  provided 
for  putting  an  end  to  tenancies  at  will,  or  from  year  to  year,  it 
should  not  only  state  the  day  upon  which  the  tenant  is  required 

'  Doe  V.  WrightmaD,  4  Esp.,  5. 

^  Parol  notice  of  six  months,  to  terminate  a  tenancy  from  year  to  year,  has 
been  held  void,  as  in  contravention  of  the  Statute  of  Frauds;  Johnstone  v. 
Huddlestone,  4  B.  &  C,  922. 

'Steward  v.  Harding,  2  Gray,  335;  Oalies  v.  Munroe,  8  Gush.,  282;  Boyn- 
ton  V.  Bodwell,  1 13  Mass.,  531. 


2S4  KOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

to  quit,  but  it  should  also  specify  the  cause  for  which  the  ten- 
ancy, whetlier  it  be  for  a  designated  term,  or  is  of  uncertain 
duration,  is  intended  to  be  thus  terminated.^ 

§  633.  Time  3Ientioned  ii  General  Terms.  —  Nevertheless,  it  is 
by  no  means  essential  that  the  notice  should  mention  the  pre- 
cise day  on  which  the  tenancy  is  to  expire,  but  if  otherwise 
stated  correctly,  the  time  may  be  mentioned  in  general  terms. 
Therefore,  a  notice  to  quit  at  the  end  of  the  month  or  quarter, 
as  the  case  may  be,  which  will  expire  next  subsequent  to 
the  day  when  the  rent  shall  again  become  due,  without  speci- 
fying the  exact  day  of  the  month,  would  be  sufficient  to 
terminate  a  tenancy  at  will,  for  the  reason  that  it  designates 
with  sufficient  certainty  a  day  equally  within  the  knowledge  of 
both  tenant  and  landlord.^ 

§  63-i.  Tenant  from  Week  to  Week.  —  So  where  a  tenant  from 
week  to  week  received  notice  to  quit  the  premises  occupied  by 
him  as  such  tenant,  on  a  subsequent  Friday,  provided  his  ten-' 
ancy  expired  on  that  day,  otherwise,  at  the  end  of  his  tenancy 
next  after  one  week  from  the  date  of  the  notice,  this  was  held 
sufficiently  specific  in  its  terms  to  entitle  the  landlord  to  pos- 
session at  the  expiration  of  the  time  therein  indicated.^ 

§  635.  Must  not  Demand  Possession  "  Forthwith."  —  But  where 
the  statutory  notice  was  required  to  be  given  fourteen  days 
prior  to  the  time  of  quitting,  a  notice  which  was  given  the  full 
time  prescribed  before  the  bringing  of  an  action  by  the  land- 
lord for  possession,  but  which  in  terms  demanded  the  vacation 
of  the  premises  "forthwith,"  was  held  insufficient,  as  not 
designating  the  time  when  the  landlord  would  be  entitled  to 
possession  after  notice.^ 

§636.  Undue  Strictness  not  Required.  —  Where  the  notice  is 
executed  by  an  agent,  or  any  one  acting  in  a  representative 

'  Currier  v.  Baker,  2  Gray,  22-i. 

'Sanford  v.  Harvey,  11  Cush.,  93;  Granger  y.  Browu,  Id.,  191;    Kemp  p. 
Derrett,  3  Camp.,  510. 
2  Doe  V.  Scott,  6  Bing.,  303. 
'Elliott  V.  Stone,  12  Cush.,  174. 


LANDLORD  AND  TENANT.  2S5 

capacity,  it  is  not  necessary,  in  order  to  entitle  such  notice  to 
recognition  by  the  party  notified,  tliat  it  should  possess  all  the 
formal  requisites,  as  to  execution,  etc.,  deemed  essential  in 
case  of  a  letter  of  attorney ;  but  will  be  regarded  as  suilicient 
in  this  respect  if  it  informs  him  as  to  the  source  from  which 
the  notice  proceeds.  Thus,  where  the  landlord  was  one  C.  M. 
H.,  and  the  notice  to  quit  was  signed,  "  For  C.  M.  II.,  by  W. 
C.  P.,  an  authorized  agent,"  it  was  held  to  be  formally  suffi- 
cient.^ 

§637.  Description. — The  notice  should  also  be  sufficiently 
specific  in  the  description  of  the  subject  of  demise,  not  to  mis- 
lead the  other  party,  nor  leave  him  in  any  doubt  as  to  what 
property  is  intended  to  be  designated.^  And  where  the  notice 
is  substantially  defective  in  this  particular,  it  will,  for  obvious 
reasons,  be  altogether  nugatory,  however  precise  and  exact  it 
may  be  in  its  conformity  to  legal  requirements,  in  all  other 
respects.  Where  there  are  several  different  places  occupied  by 
the  same  tenant,  under  the  same  landlord,  the  law  will  not  be 
satisfied  by  the  giving  of  a  notice,  either  by  landlord  or  ten- 
ant, which  is  so  general  in  its  description  of  the  premises  as  to 
apply  equally  well  to  either. 

§  638.  Substantial  Accuracj'  alone  Required.  —  IS^evertheless,  in 
this  particular,  as  in  all  others  regarding  notices  of  this  sort, 
what  the  law  requires  is  substantial,  and  not  technical,  accu- 
racy, and  will  not  regard  mistakes  in  the  description  which  do 
not  tend  to  mislead  the  party  notified.  Thus,  where  the  lan- 
guage of  the  notice  was  to  quit  "  that  mesuage,  farm,  &c.,  sit- 
uated at  D.,  in  the  County  of  York,  which  you  now  hold  under 
rae,  as  tenant  from  year  to  year,"  and  it  appeared  on  the  trial 
that  the  farm  intended,  and  the  only  one  occupied  by  the  ten- 
ant, was  not  situated  at  D.,  but  at  11.,  and  that  D.  and  H. 
were  adjoining  parishes,  the  variance  was  held  immaterial,  as 
not  calculated  to  mislead  the  tenant.^ 


>  Reed  v.  Ilawley,  45  111.,  40. 

'  King  V.  Conolly,  44  Cal.,  23G. 

a  Doe  V.  Wilkinson,  13  Ad.  &  EL,  743. 


286  NOTICE    BY    WHICH    LIABILITIES    EXTINGUISHED. 

§  639.  Illustration  of  Foregoing.  —  Where,  according  to  the 
terms  of  a  lease  for  a  terra  of  years,  either  party  was  at  liberty 
to  terminate  the  same  at  the  expiration  of  the  fourteenth  year, 
and  there  were  several  different  tracts  held  under  the  same 
lease,  and  notice  to  quit  was  given,  describing  only  a  part 
of  the  property  included  in  the  lease,  but  adding  the  words, 
"  agreeably  to  the  terras  of  the  covenant  between  us,  on  the 
expiration  of  the  fourteenth  year  of  our  term,"  this  was  held 
to  indicate  with  sufficient  certainty  that  it  was  intended  to 
apply  to  all,  for  the  reason  that  the  covenants  referred  to  did 
authorize  a  termination  of  the  lease  as  to  part,  and  a  continu. 
ation  of  the  term  as  to  the  rest.^ 

§  610.  Service  of  Notice.  —  There  is  not  a  great  deal  to  be 
said  as  to  the  manner  and  mode  of  serving  notices  of  this 
kind,  beyond  what  is  repeatedly  laid  down  in  other  portions  of 
this  work  with  respect  to  the  service  of  notices,  by  which  the 
rights  of  the  party  notified  are  affected.  Any  manner  of 
serving  the  written  notice  will  suffice,  when  it  can  be  traced 
to  the  hands  of  the  party  for  whom  it  was  intended  in  due 
time.  Personal  notice  is  always  best,  because  it  is  more 
direct,  and  when  service  upon  the  party  in  person  is  practicable, 
it  should  be  the  mode  adopted.  But  were  there  no  other  way 
of  bringing  these  tenancies  to  an  end,  short  of  notice  delivered 
to  the  landlord  or  tenant  in  person,  they  might  be  rendered 
of  indefinite  duration,  by  the  avoidance  of  notice  on  the  part 
of  the  party  whose  interests  dictated  such  a  course.  For  this 
reason  the  doctrine  has  long  since  been  recognized  that,  even 
in  the  absence  of  a  statute  for  that  purpose,  notice  to  quit  may 
be  effectually  served  upon  the  tenant  during  his  absence,  by 
leaving  the  same  at  his  usual  place  of  abode,  whether  it  be 
upon  the  leased  premises  or  not,  with  his  wife  or  other  suitable 
member  of  the  family,  or  even  with  a  servant.^  And  where 
the  party  has  a  place  of  business  he  may  be  effectually  notified 

^  Doe  V.  Arclier,  14  East,  245. 

« Jones  V.  Marsh,  4  T.  R.,  464;  Clark  v.  Kelilier,  107  Mass.,  406. 


LANDLORD    AND    TENANT.  287 

by  leaving  the  written  notice  at  such  place,  witli  some  one  in 
charge.^ 

§  641.  May  be  Waived.  —  This,  like  almost  every  other  species 
of  notice,  required  by  law  for  the  preservation  of  a  right,  or 
the  exaction  of  a  duty,  may  be  waived.  It,  however,  possesses 
one  peculiarity  in  this  respect  not  common  to  all  other  kinds 
of  notice,  and  that  is,  that  the  waiver  may  be  either  before  the 
notice  is  given,  after  the  time  for  giving  it  has  elapsed,  or  sub- 
sequent to  the  giving  of  the  notice,  when  it  has  been  given  in 
due  time.  It  may  be  waived  by  either  party  before  it  is  due 
or  after  failure  to  give  notice  by  acting  in  conformity  to  the 
wishes  of  the  other  party,  in  amicably  terminating  the  tenancy 
precisely  as  though  notice  had  been  given.  It  may  also  be 
substantially  waived  by  acting  upon  a  defective  notice.  And 
there  may  be  a  waiver  of  notice  by  the  party  giving  it,  when 
he  subsequently  acts  toward  the  other  party,  precisely  as 
though  no  such  notice  had  been  given. 

g  G<*2.  Voluutary  Surrender. —  Where  there  has  been  a  volun- 
tary surrender  of  the  premises  by  the  tenant,  and  an  acceptance 
thereof  by  the  landlord,  the  necessity  for  notice  to  quit  is  there- 
by dispensed  with,  and  either  party  would  be  justified  in  treat- 
ing the  tenancy  as  at  an  end  from  the  time  of  such  surrender 
and  acceptance.  The  transaction  possesses  all  the  essential 
characteristics  of  any  executed  contract,  and  for  that  reason  it 
would  be  equally  effectual  as  a  waiver  of  notice  whether  it 
were  verbal  or  written.'^ 

§643.  Parol  Surrender  and  Acceptance.  —  So  where  premises 
were  thus  surrendered  and  accepted,  though  by  parol,  no  claim 
for  rent  was  made  for  seven  years  thereafter,  and  the  pi'emises 
were  re-let  to  others,  the  surrender  was  treated  as  an  accom- 
plished fact,  and  not  to  be  affected  by  the  Statute  of  Frauds.^ 
And  a  surrender  of  this  kind  and  the  acceptance  by  the  land- 
lord may  be  proven  by  the  circumstance  that  the  landlord 

'  Walker  v.  Sharpe,  103  Mass.,  154. 

'Whitehead  v.  Clifford,  5  Taunt.,  518;  Williams  v.  Jones,  1  Bush.  (Ky.), 
621. 
» Pratt  V.  Richards,  GO  Penn.  St.,  53. 


2 88  ^•0TICE  BY  "sviiicu  liabilities  extixguished. 

re-let  the  premises  during  the  term  for  which  the  teuant  would 
have  been  held  but  for  the  surrender.^ 

§  644.  Offering  to  Let  not  Waiver.  —  But  where  the  tenant  is 
absent  for  a  time,  or  even  without  the  intention  of  returning 
at  all,  and  during  such  absence  the  landlord  offers  the  place  to 
let  by  putting  up  placards  on  the  premises,  or  b}'  what  means 
soever  he  may  choose  to  adopt,  whether  public  or  private, 
unless  the  place  is  actually  rented,  the  landlord  will  not  be 
held  to  have  accepted  the  surrender,  and  thereby  M'aived  his 
right  to  notice.* 

§  645.  Parol  Surrender  must  go  into  Immediate  Effect.  —  In 
order  that  a  parol  surrender  may  be  eftectual,  it  must  go  into 
eifect  at  the  time  the  same  is  offered.  It  will  not  be  sufficient 
to  terminate  a  tenancy  from  year  to  year  when  there  is  merely 
a  verbal  offer  to  surrender  prior  to  the  time  when  it  is  proposed 
to  give  up  the  premises,  \vhich  offer  is  accepted  in  the  same 
manner,  where  the  Statute  of  frauds  is  recognized.^  It  is 
provided  by  this  statute  that  "  no  lease  or  term  of  years,  or 
any  uncertain  interest  of  or  in  any  mesuages,  lands,  tenements 
or  hereditaments,  shall  be  surrendered,  unless  by  deed  or 
note  in  writing  or  by  act  and  operation  of  law."  Therefore, 
parol  notice  less  than  six  months  before  the  day  on  which  the 
tenant  is  to  quit,  that  he  will  on  that  day  vacate  the  premises, 
to  which  the  landlord  assents,  being  insufficient  as  a  notice 
on  account  of  shortness  of  the  time,  is  void  as  a  surrender,  for 
the  reason  that  it  is  to  take  effect  infuturo^  and  is  not  reduced 
to  writing.* 

§  646.  Verbal  License  to  Surrender  Tenancy  from  Year  to  Year 
Inoperative.  —  So  where  a  dispute  arose  between  a  tenant  from 
year  to  year  and  his  landlord,  concerning  repairs,  and  the 
tenant  threatened  to  quit  the  premises,  to  which  the  landlord 
replied,    "You  may  quit  when  you  please!"   and  the  tenant 

1  Witman  v.  Watry,  31  Wis,  638. 

'  Pier  V.  Carr,  69  Pena.  St ,  326 ;  Redpath  v.  Roberts,  3  Esp.,  S25. 
'  29  Car,  II,  c.  3,  §  3. 

*  Johnstone  v.  Huddlestone,  4  B.  &  C,  922 ;  Doe  i\  Milward,  3  Mees.  &  Wels., 
328. 


LANDLORD    AND    TENANT.  289 

accordingly  a  few  days  thereafter  left  the  premises,  it  was  held 
that  this  did  not  terminate  the  tenancy,  and  the  tenant  would 
Btill  be  liable  for  rent.^ 

§  647.  Defects  in  Notice  may  be  Waived.  —  The  defects  m  a 
notice  which  is  insufficient  for  the  reason  that  it  designates  no 
time,  cither  specially  or  in  general  terms,  may  be  waived,  so 
as  to  give  it  all  the  force  and  eifect  of  a  regular  and  perfect 
notice.  Thus  where  such  defective  notice  was  given  by  the 
tenant  to  the  landlord,  and  the  latter,  after  receiving  the  notice, 
in  order  to  induce  the  tenant  to  remain,  oifered  to  lower  the 
rent  and  make  certain  repairs,  these  facts  were  held  admissible 
in  evidence  to  prove  the  landlord's  w^aiver  of  the  omissions 
from  the  notice.^ 

§  648.  AVaiver  of  Rights  under  Notice.  —  When  notice  has 
been  given  by  either  the  landlord  or  the  tenant,  whether  the 
time  for  which  such  notice  is  given  has  expired  or  not,  the 
waiver  by  the  party  giving  the  notice  would  properly  be  styled 
a  waiver  of  his  rights  under  the  same,  rather  than  a  waiver  oi 
notice,  as  it  is  generally  termed.  This  right  may  be  waived 
by  either  party  so  as  to  perpetuate  the  tenancj".  If  the  land- 
lord receive  rent,  after  the  date  when  the  tenant  is  notified  to 
quit,  or  after  giving  such  notice  in  advance  for  a  time  subse- 
quent to  the  designated  time  of  quitting,  this  will  operate 
conclusively  upon  him  to  prevent  the  enforcement  of  his  rights 
to  immediate  possession.^  Upon  the  same  principle,  the  land- 
lord's distraining  for  rent  accrued  after  the  expiration  of  his 
notice  to  quit,  will  amount  to  a  waiver."* 

§  649.  Will  not  be  Presumed  from  Acceptance  of  Rent  bj^  Unau- 
thorized Person.  — But  where  the  tenancy  is  regulai'ly  termina- 
ted by  notice  to  quit,  and  the  tenant  willfully  holds  over  without 
the  permission  of  tlie  landlord,  express  or  implied,  such  holding 

1  Mollett  V.  Brayne,  2  Camp.,  103. 

2  Boynton  v.  Bodwell,  113  Mass.,  531. 

8 Collins  V.  Canty,  6  Cusli.,  415 ;  Prindle  v.  Anderson,  19  Wend.,  391 ;  Good- 
rjght  V.  Cordwent,  6  T.  R.,  219. 
^Zouch  V.  Willingale,  1  H.  Blackst.,  311. 

19 


2'JO  NOTICIi    HV    WHICH    LIABILITIES    EXTINGUISHED. 

over  will  not  prolong  the  tenancy.^  And  thougli  such  per- 
mission may  be  implied  from  a  receipt  of  rent  after  such  notice, 
where  tlie  rent  was  paid  to  one  ^vho  was  not  authorized  to 
receive  it,  such  payment  will  not  affect  the  rights  of  the  land- 
lord, although  sucli  person  had  previously  been  accustomed  to 
receive  rents  for  the  landlord.'^  Nor  would  the  giving  of  a 
second  notice  to  quit  after  the  expiration  of  the  time  limited 
in  the  first,  amount  to  a  waiver  of  the  party's  rights  under  the 
notice,^ 

§  650.  Mere  Permission  to  Remain  after  Notice  no  Waiver.  — 
Mere  permission  of  the  landlord  for  the  tenant  to  remain  fur 
a  time  after  notice,  will  not  in  every  instance  amount  to  a 
waiver.  Thus  where  after  notice  the  landlord  promised  the 
tenant  that  he  need  not  remove,  unless  the  premises  were  sold, 
and  accordingly  permitted  him  to  remain  until  such  sale,  it 
was  held  that  the  notice  was  not  thereby  waived.* 

'  Boggs  V.  Black,  1  Biu.,  333. 
«Doe«.  Calvert,  2  Camp.,  387. 
"Messenger  v.  Armstroag,   1  T.  R.,  43. 
*  Whiteacre  v.  Symonds,  10  East,  13. 


NOTICE    OF    AGEXCr.  291 


CHAPTEPw  y. 

Principal  and  Agent. 

I.  Notice  of  Agency. 
II.  Notice  to  ak  Agent. 
III.  Notice  by  an  Agent. 

I.  'Notice  of  AG?:Ncr. 

g  651.  Principal's  Liability,  when  Agent  Exceeds  Authority. 

652.  Secret  Instructions  will  not  Limit. 

653.  Limited  by  Written  AutJiority. 

654.  Principal  Bound  by  Agent's  liepresentatioa. 

655.  Nonce  of  Limitation  should  be  Prior  to  the  Transaction. 

656.  Principal  Bound  hy  Agent's  Acts  in  Excess  of  Authority  by  Letter 

of  Attorney. 

657.  Persf>ns  Dealing  with  Agent  must  take  Notice  of  Contents  of  Let- 

ter of  Attorney. 

658.  Public  and  Private  Restriction  of  Authority. 

659.  Afrent's  Authority  Limited  by  Law. 

660.  Wlien  Parties  bound  to  Inquire. 

661.  Illustration  where  Authority  in  Writing. 
663.  Illustration  where  Authority  by  Parol. 

663.  Difference  between  General  and  Special  Agents. 

664.  Transactions  liequiring  Scrutiny  of  Agent's  Authority. 

665.  Avoidancf  of  Knowledge  of  Limitation  of  Agent's  Authority. 

666.  Agent  U)  Nejrotiat*;  Bills  and  Notes. 

667.  Subsequent  Ratification. 

668.  Ratification  with  Ni/tice  binds  PrincipaL 

669.  Silent  A'quie.scence  will  lifdease  Agent. 

670.  Contract  in  Name  of  Agent  Binding. 

671.  Principal  Bound  though  Agency  Concealed  or  Revoked  without 

Notice.— Husband  and  AMfe. 

^  651.  Principal's   Liability,  when  Agent  Exceeds  Aatliority.  — 
The  full  measure  of  tlie  principal's  liability  for  tlie  acts  of  the 


292  PRINCIPAL    AND    AGENT. 

ugent  is  not  declared  in  the  i-ule  as  generally  laid  down — that 
the  principal  is  liable  for  the  acts  of  his  agent,  done  within 
the  scope  of  his  authority.  One  dealing  with  an  agent 
is  not  always  fully  informed  of  the  extent  of  such  agent's 
authority,  and  when  his  want  of  knowledge  is  not  the  result  of 
laches,  or  voluntary  ignorance,  the  25i'iucipal  may  be  bound, 
though  the  agent  exceeds  his  authority.  "When  the  oj^parent 
authority  with  which  the  agent  is  clothed  is  greater  than  was 
intended  b}"  the  principal,  the  liability  of  the  latter  for 
unauthorized  acts  of  the  former  arises  trom  the  application  of 
the  familiar  principal,  that  Mdiere  one  of  two  innocent  parties 
must  suffer  by  the  misconduct  of  another,  it  should  be  the  one 
who  has  placed  it  within  the  power  of  the  other  to  perpetrate 
the  wrong.^ 

§  652.  Secret  Instructions  will  not  Limit.  —  A  person  dealing^ 
with  an  agent  who  is  apparenth'  clothed  with  general  powers 
in  connection  with  the  subject  matter  of  the  transaction,  is  not 
required  to  take  notice  of  private,  or  secret  instructions,  limit- 
ing the  powers  of  such  agent,  nor  is  he  put  upon  inquiry  in 
regard  to  such  instructions,  so  long  as  the  transactions  are 
within  the  general  scope  of  the  agent's  ostensible  powers.^ 

§  653.  Limited  by  Written  Authority,  —  AVhen  notice  of  the 
authority  conferred  upon  an  agent  is  communicated  by  a  letter 
of  attorney,  letter  of  credit,  or  other  writing,  the  course  to  be 
pursued  by  persons  dealing  with  such  agent  is  quite  clear. 
The  full  extent  of  the  power  conferred  may  be  looked  for  in 
the  written  instrument.  By  it,  the  agent's  authority  will  be 
expressly  defined.  When,  however,  the  principal  has  not  thus 
expressly  defined  the  limits  of  the  power  conferred  upon  his 
representative,  the  extent  of  his  authority  may  be  inferred 
from  the  acts  of  both  principal  and  agent. ^     As  where  goods 

'Ramsey  B.  Strobach,  52  Ala.,  513;  Calais  Steamboat  Co.  v.  Van  Pelt,  2 
Black,  372;  2  Kent  Comm.,  620-21 ;  Story  on  Agency,  §  127. 

*  Andrews  v.  Kneeland,  6  Cow.,  354;  Beals  v.  Allen,  18  Johns.,  3ti3 ;  Pick- 
ering V.  Busk,  15  East,  38. 

"Perkins  v.  Wash.  Ins.  Co.,  4  Coweu,  645;  Com.  Bank  Lake  Erie  v. 
Norton,  1  Hill,  501. 


NOTICE    OF    AGENCY.  293 

were  bought  of  a  broker  to  whose  name  they  had  been  trans- 
ferred, the  purchaser  would  not  be  affected  by  secret  instruc- 
tions from  the  principaL  Putting  the  goods  in  the  hands  of 
one  whose  business  it  was  to  sell,  amounted  to  an  implied 
authority  to  sell  them.^  So  wliere  the  equitable  owners  of  a 
vessel  permitted  her  to  be  held  in  the  name  of  another  as  legal 
owner,  for  the  purpose  of  making  a  sale,  a  purchaser  might 
infer  from  such  conduct,  even  where  he  had  notice  of  the 
character  in  which  the  legal  owner  held,  that  he  had  unlim- 
ited authority  to  dispose  of  the  vessel.  Such  purchaser  could 
not  be  affected  by  any  concealed  interest,  or  secret  instructions 
from  the  principal,  of  which  he  had  no  notice.  And  such 
notice  it  was  held,  to  affect  him,  should  be  established  by 
unequivocal  proof,  where  the  fact  had  been  studiously  secreted, 
down  to  the  time  of  sale.''  So  also  in  an  action  of  assumpsit, 
on  a  warranty  by  a  servant  empowered  to  sell  a  horse,  the 
defendant  denied  the  authority  of  tlie  servant  to  make  the 
warranty.  It  was  held  by  Lord  Ellenborough,  however,  that 
as  the  horse  was  entrusted  to  the  servant's  care,  for  the 
express  purpose  of  selling  it,  the  inference  would  follow  that 
he  was  authorized  to  do  whatever  was  necessary  to  affect  the 
sale.'  So  where  an  agent  was  employed  to  obtain  subscriptions 
to  the  capital  of  a  joint  stock  company,  his  principal  was  held 
liable  for  his  false  representations,  because  to  make  representa- 
tions was  within  the  scope  of  his  authority,  and  was  what 
should  have  been  expected  from  one  employed  in  that  ca])acit3^* 
§654.  Principal  Bound  by  Agent's  Representation.  —  Where 
representations  are  made  by  an  agent,  to  which  it  is  sought  to 
hold  the  principal,  the  privity  of  the  principal  may  be  presume<i 
from  the  character  of  such  representations,  and  the  notoriety 
with  which  they  are  made.     As  where  the  agent  of  ship  own- 

>  Pickering  v.  Busk,  15  East,  38;  Whitehead  v.  Tuckett,  Id.,  400;  Everett 
«.  Saltus,  15  Wend.,  474;  Dyer  v.  Pearson,  3  Barn.  &  Cres,C8;Sandfori  o. 
Handy,  23  Wend.,  2fi0. 

'  Calais  Steamboat  Co.  v.  Van  Pelt,  2  Black,  372. 

*IIelyear  v.  Plawke,  5  Esp.,  72. 

♦  Sandlbrd  v.  Handy,  23  Wend.,  2C0. 


204  PBINCirAL    AND    AGENT. 

ers  advertised  the  sailing  of  a  Vtssel,  and  in  tlie  public  adver- 
tisement made  representations  as  to  convoy,  etc.,  it  was  held 
to  render  owners  privy  to  the  representations  made,  and  con- 
sequently bound  by  them.^ 

§  655.  Notice  of  Limitation  should  be  Prior  to  tlie  Transaction.  — 
IN'otice  of  the  agency,  and  of  its  special  character,  must  come 
to  the  person  dealing  with  tlie  agent,  'before  the  transaction,  in 
order  to  affect  such  person.  As  where  one  borrowed  the  princi- 
pal's money  of  the  agent,  for  a  stipulated  time,  it  was 
decided  that  lie  could  hold  it  as  against  the  principal,  notwith- 
standing subsequent  notice  of  the  agency,  and  that  in  loaning 
the  money  the  agent  exceeded  his  authorit\^^ 

§  656.  Principal  bound  by  Agent's  Acts  in  Excess  of  Authority 
by  Letter  of  Attorney.  — Even  when  the  authority  of  the  agent 
is  expressly  limited  in  the  written  instrument  to  which  per- 
sons dealing  with  him  are  bound  to  look  in  order  to  learn  that 
he  has  any  power  whatever  to  bind  his  principal,  he  may  over- 
step the  limits  of  his  authority,  and  bind  his  principal.  As 
where  an  agent  had  been  sent  from  England  to  Peru,  with  a 
written  power  of  attorney  to  purchase,  lease,  work,  etc.,  min- 
ing claims  and  mines  for  his  principal,  with  also  a  general 
letter  of  credit  authorizing  him  to  draw  upon  the  principal  to 
the  extent  of  £10,000.  After  drawing  the  amount  authorized 
by  his  letter,  he  gave  plaintiff  a  draft  for  £1,500  additional, 
and  it  was  held  that  the  plaintiff  might  infer  from  the  power 
of  attorney  that  the  agent  was  clothed  with  necessary  authority 
to  carry  out  the  extensive  enterprises  therein  mentioned,  and 
even  if  plaintiff'  had  seen  the  letter  of  credit,  as  the  amount 
already  drawn  was  not  indorsed  thereon,  it  would  not  have 
amounted  to  notice  to  him  that  defendant's  agent  had  exceeded 
the  limits  of  his  authority.*     So  it  was  held  in  another  case,* 

1  Runquist  u  Ditchell,  3  Esp.,  04;   Himter  r.  Hudson  &c.  Co.,  20  Barb., 
4(i:5 :  Xat'l  Exch.  Co.  v.  Drew,  32  Eng.  L.  &  Eq.,  1.  It  has  been  held  however, 
that  the  principal  will  not  be  held  where  he  did  not  direct  the  representa- 
tions to  be  made.     Fuller  t\  Wilson.  3  Ad.  &  Ell.,  N.  S.,  G29. 

*  Lime  Rock  Bank  v.  Plimpton,  17  Pick.,  159. 
'  Witliingtou  v..  Herring,  5  Bing.,  442. 

*  Hicks  x>.  Hankin,  4  Esp.,  114. 


NOTICE    OF    AGKNOY.  295 

tliat  the  conduct  and  admissions  of  the  agent  as  to  his  own 
interpretation  of  the  authority  conferred  upon  him,  would  jus- 
tify a  person  dealing  witli  him  in  entering  into  contracts 
which  they  both  knew  to  be  beyond  the  letter  of  the  agent's 
instructions.  The  authority  of  this  case  may  well  be  ques- 
tioned. The  agent  had  written  anthority  from  his  principal 
to  purchase  grain  at  a  fixed  price.  The  written  authority  was 
'  communicated  to  the  seller  of  the  grain,  who  said  "  There  must 
be  some  mistake,"  and  sold  the  grain  to  the  agent  on  account 
of  his  principal,  at  a  price  in  advance  of  that  which  tlie  agent 
was  by  his  written  instructions  authorized  to  contract  for.  In 
an  action  to  recover  the  purchase  price,  the  agent  being  called 
as  a  witness,  testified  on  cross  examination  that  he  considered 
himself  authorized  to  pay  a  higher  jyt'ice  than  that  rnentloned 
in  his  written  instructions,  wheveu])on  the  court  declared  that 
the  agent  '''"admits  he  did  not  c<Misider  himself  as  bound  by 
the  direction  in  writing  of  his  principal;  he  considered  him- 
self at  liberty  to  exceed  that  authority."  Therefore,  it  was 
held,  his  principal  was  bound.  Here  the  agent,  who  had 
exceeded  liis  authoi-ity,  in  order  to  justify  his  conduct  on  the 
ground  of  good  intentions,  is  allowed  to  admit  away  his  prin- 
cipal's defense. 

§  65Y.  Persons  Dealing  with  Agent  Must  Take  Notice  of  Contents 
of  Letter  of  Attorney.  —  Tlie  correct  rule  is,  that  when  an  agent 
is  known  to  be  acting  nnder  written  instructions,  those  liaving 
dealings  with  him  should  look  to  the  instrument  by  which  his 
powers  are  conferred,  to  gain  a  knowledge  of  the  extent  of 
those  powers,  and  where  they  neglect  to  examine  his  written 
authorization,  they  are  none  the  less  charged  with  notice  of 
tlie  limitations  and  restrictions  therein  contained,  either  in 
express  language,  or  by  necessary  implication.^  A  party  deal- 
ing with  an  agent  whose  authority  is  conferred  by  a  written 
instrument,  is  bound  to  take  notice  of  its   legal  effect.^     Here 


'Stainback  r.  Bank  of  Viruinia,   11   Gratt.,  209;    Levericli  v.  Mayor  of 
N.  Y.,  GO  Barb.,  623. 
'  Rossi  ter  v.  Ross  iter,  8  Woud.,  494. 


296  PRINCIPAL    AND    AGENT. 

it  was  accordingly  held  that  as  general  words  in  a  power  of 
attorney  would  not  enlarge  the  scope  of  the  powers  therein 
conferred,  beyond  what  was  indicated  in  the  preceding  lan- 
guage, that  notice  must  be  taken  of  the  particular  words  by 
which  such  powers  were  restricted.^ 

§  658.  Public  and  Private  Restriction  of  Authority.  —  When  the 
limitation  on  the  authority  of  a  general  agent  is  public,  every 
one  must  regard  it.  But  if  it  be  private,  it  must  be  brought 
directly  to  the  notice  of  any  one  dealing  with  him  in  that 
capacity;  otherwise  the  principal  will  be  bound  by  transac- 
tions beyond  the  limits  of  the  agency.^ 

§659.  Agent's  Authority  Limited  by  Law.  —  Where  the  limit- 
ations upon  an  agent's  authority  are  fixed  by  law,  every  one  is 
bound  to  notice  them.  As  in  case  of  a  guardian  or  curator  of 
an  infant,  who  is  dealing  with  his  ward's  estate,  any  one  who 
is  a  party  to  such  a  transaction,  with  notice  that  the  subject 
matter  of  their  dealings  is  the  property  of  the  ward,  is  charged 
with  notice  of  the  statutory  limitations  upon  the  power  of  the 
guardian,  and  acts  at  his  peril. ^ 

§  660.  When  Parties  Bound  to  Inquire.  —  Wuen  the  agent  acts 
under  a  special  authority,  whether  written  or  verbal,  those 
dealing  with  him,  with  notice  of  the  natnre  and  character  of 
such  agency,  are  bound  to  inquire  into  the  extent  of  the  power 
conferred  upon  such  agent.'' 

§  661.  TUnstratiori  where  Authority  in  Writing.  —  The  above 
doctrine,  as  applied  to  agents  acting  under  written  authority, 
is  fairly  illustrated  by  the  case  of  Shiinmelpenich  v.  Bayard.^ 
There  the  principal,  who  was  plaintiff  in  the  action,  resided 
abroad,  and  appointed  an  agent  in  this  country,  with  authority 


1  See  Campbell  v.  Hastings,  29  Ark.,  512. 

'  Bryant  v.  Moore.  26  Me.,  84;  .rolmsou  v.  .Tones,  4  Barb.,  3G9. 

^  Woods  V.  Boots,  60  Mo.,  546. 

*Snovv  V.  Perry,  9  Pick.,  542;  Dunning  y.  Smith,  3  Johns.  Cb., 344;  Hatch 
V.  Taylor,  10  IST.  H.,  333:  Towle  v.  Leavitt,  23  N.  H.,  360;  Schimmelpenich 
V.  Bayard,  1  Pet,  264;  Gibsons.  Colt,  7  Johns.,  390;  Stainor  v.  Tysen,  3  Hill 
(N.  Y.),  279;  North  River  Bank  v.  Aymar,  Id.,  263. 

*  Supra. 


NOTICE    OF    AGENCY.  207 

to  purchase  certain  commodities  on  account  of  the  ])riiioipal, 
and  for  the  purpose  of  fticilitating  the  business,  requested 
defendant  to  indorse  di-afts  drawn  bj  such  a^ent  on  the  prin- 
cipal, to  an  amount  expressly  limited  in  the  letter  of  credit, 
for  the  purpose  of  makint^  such  purchases.  In  the  corre- 
spondence between  plaintiff  and  defendant,  the  former  warned 
the  latter  not  to  advance  any  money  to  the  ao^ent,  except  there 
was  a  ''moral  certainty"  that  he  was  using  it  in  the  interest 
of  his  principal.  Plaintiff  had  also  advised  defendant  to 
take  the  agent's  bills  "  in  the  persuasion  of  their  solidity, 
and  of  the  reality  of  the  transactions  on  which  they  were 
issued."  Though  the  principal  continued  to  receive  consign- 
ments, and  honor  drafts  somewhat  in  excess  of  the  amount 
limited  in  the  letter  of  credit,  and  in  his  correspondence  with 
defendant,  expressed  confidence  in  the  integrity  of  the  agent, 
he  was  held  not  to  be  bound  by  excessive  drafts,  drawn  by  the 
agent  to  obtain  money  for  his  own,  instead  of  the  principal's 
use. 

§  66  2.  Illustration  where  Authority  bj'  Parol.  —  The  case  of 
Towle  V.  Leavitt  ^  is  an  example  of  the  operation  of  this  rule 
in  cases  where  the  authority  conferred  upon  the  agent  is  not 
reduced  to  writing.  Here,  the  principal  intrusted  a  phaeton 
to  the  care  of  one  whose  general  business  was  to  make  and  sell, 
as  well  as  to  repair,  carriages,  etc.,  w^ith  power  to  sell  the 
phaeton,  but  for  not  less  than  forty  dollars.  At  the  close  of  a 
sale  of  some  of  his  own  property,  under  an  attachment,  the 
agent  offered  the  phaeton  at  auction,  and  it  was  purchased  for 
seventeen  dollars.  It  was  held  that  the  unusual  manner  of 
the  sale,  together  with  the  fact  that  it  was  a  second-hand  vehi- 
cle, such  as  it  was  not  the  business  of  the  agent  to  sell,  were 
sufficient  to  inform  the  purchaser  of  the  special  character  of 
the  agency,  and  put  him  upon  inquiry  as  to  the  extent  of  the 
agency  ;  and  that,  as  such  inquiry  would  have  led  to  the 
knowledire  that  the  airent  was  not  authorized  to  sell  at  auction, 
or  for  a  less    sum  tlnui  forty   dollars,  the    principal  might 

'  Supra. 


298  PRINCIPAL    AND    AGENT. 

reclaim  his  property.  So  in  the  case  of  Gibson  v.  Colt/  it 
was  decided  that  a  power  to  sell  was  a  special  power,  so  far  as 
concerned  any  transactions  or  contracts  beyond  the  mere  sell- 
inf^.  That  it  did  not  include  power  to  warrant.  In  this 
case  the  master  of  a  vessel  was  authorized  to  sell  in  the 
same  manner  as  the  owners  might  sell,  and  upon  offerinc,' 
the  vessel  to  the  purchasers,  made  false  representations  as 
to  her  registry,  and  the  court  held  that  the  owners  were  no: 
bound  by  such  representations,  as  the  purchaser  was  charged 
with  notice  of  the  powers  with  which  the  agent  was  clothed, 
and  that  such  representations  were  in  excess  of  such  powers. 
There  is  an  apparent  conflict  between  this  case  and  that  of 
Helyear  v.  Hawke,^  which  can  only  be  reconciled,  if  at  all, 
upon  the  ground  that  in  the  English  case,  selling  was  the 
business  in  which  the  owners  w^ere  engaged,  and  the  agency 
was  general  for  that  purpose  ;  while  in  the  American  case, 
the  selling  of  the  vessel  was  a  departure  from  the  general  busi- 
ness of  both  owner  and  master,  and  hence  the  agency  for 
that  purpose  was  strictly  special. 

§  663.  Difference  betw^een  General  aii<l  Special  Agents.  —  To 
determine  the  extent  to  which  purchasers  from  agents  are 
charged  with  notice  of  limitations  upon  their  powers,  it  is 
necessary  to  keep  constantl)^  in  view  the  distinction  between 
those  ^A'ho  act  under  general  authority,  and  those  clothed  by 
the  principal  with  special  powers.  In  dealing  with  one  of  the 
former,  the  principal  is  bound  by  everything  done  within  tjie 
genei'al  scope  of  his  authority,  until  the  person  dealing  with 
him  has  been  notified  of  a  revocation  of  his  authorit}' ;  while, 
where  the  agent  is  exercising  powers  specially  conferred,  every 

1  7  Johus.,  390.  See,  also,  Edwards  i\  Thomas,  2  Mo.,  App.,  282;  Clerks' 
Sav.  B'k  n.  Thomas,  /d.,  367,  where  it  was  held  that  the  indorsee  of  nego- 
tiable paper,  indorsed  by  an  agent,  for  the  benefit  of  one  other  than  his 
principal,  knowing  it  to  be  accommodation  paper,  was  put  upon  inqiiirj'as 
to  the  authorit}'  of  the  agent  tT  bind  his  principal  by  the  iadorsemeat. 

^5  Esp.,  72.  See,  also,  Bronsou  v.  Coffin,  118  Mass.,  150;  Wicks  «.  Hatch, 
62  N.  Y.,  535. 


NOTICE    OF    AGENCY.  299 

!ict  is  void,  so  far  as  it  affects   the  principal,  which   is  not  in 
strict  conformity  with  his  instructions.^ 

§  6CA.  Transactions  Requiring  Scrutiny  of  Agent's  Authority.  — 
Where  the  agent  professes  to  act  under  and  by  virtue  of 
authority  specially  conferred,  the  duty  of  the  person  dealing 
with  liim  is  quite  plain  so  far  as  concerns  inquiry  into  the 
extent  of  such  special  authority.  But  controversies  quite  fre- 
quently arise  from  a  misconception  of  this  matter,  by  the 
agent,  the  person  dealing  with  him,  or  by  the  principal.  The 
two  former  are  liable  to  be  misled  by  the  general  language 
of  a  letter  of  attorney,  given  for  a  special  purpose?'  The 
latter  may  incur  liability,  by  apparently  investing  his  rep- 
resentative with  larger  powers  than  he  really  intended.^  There 
are,  however,  certain  transactions,  which,  by  their  very  nature, 
should  excite  caution  upon  the  part  of  one  dealing  with 
an  agent,  and  lead  to  careful  scrutiny  and  inquiry.  Such, 
for  example,  is  the  aoceptance  of  bills,  and  the  execution 
of  vromissory  notes  bj^  one  as  the  agent  of  another.  Here 
the  agency  is  apparent  on  the  face  of  the  transaction,  and 
as  these  are  powers  which  are  exercised  almost  iiivariabh' 
under  special  authority,  it  behooves  the  holder  of  the  bill, 
or  the  party  accepting  the  note,  to  look  well  to  the  extent 
of  the  agent's  powers.*  In  the  case  cited  the  agent  acted 
under  tvvo  letters  of  attorney,  by  one  of  which  he  was  author- 
ized, to  do  certain  acts,  among  others  to  indorse  bills  for  and 
in  the  name  and  to  the  use  of  his  principal.  This  it  was  held 
only  authorized  acts  for  the  defendant's  sole  use,  and  not  for  a 
copartnership  of  which  he  was  a  member.  And  though  there 
were  general  words  in  the  instrument,  as  the  power  to  accept 
bills  was  not  included  among  those  enumerated,  it  could  not 
have  been  intended.     The  other  letter  gave  express  authority 

'Allen  u.  Ogden,  1  Wash.  C.  Ct.,  174;  Munn  v.  Commission  Co.,  15 
Johns.,  44;  Nixon  «.  Palmer,  8  N.  Y.,  398. 

"See  Jw<e  §657. 

^  See  Ante  §  656. 

*Alwood  ».  Munnings,  7  Barn.  «&  Crcs.,  278.  See  also,  Spooner  «.  Thomp- 
son, 48  Vt.,  259. 


300  PRINCIl'AL    AND    AGENT. 

to  accept,  for  tlie  defendant,  and  on  his  behalf,  bills  drawn  by 
his  agents.  This  was  held  not  to  include  partnership  paper, 
drawn  by  one  of  his  partners.  This  wa»5  the  legal  construction 
put  upon  these  powers  of  attorney,  and  so  they  should  hav^e 
been  taken  notice  of  l)y  the  plaintiff.^ 

§  665.  Avoidance  of  Knowleilge  of  Limitation  of  Agent's  Author- 
ity.—  One  dealing  in  good  faith  with  an  agent,  upon  the 
strength  of  his  apparent  authority,  and  where  the  matter  seems 
within  the  general  scope  of  the  powers  usually  conferred  upon 
such  agents,  nuiy  be  excused  from  that  close  scrutiny  into  the 
nature  and  extent  of  the  agent's  authority,  that  would  be 
required  at  the  hands  of  one  who  manifestly  sought  an  unfair 
advantage.  As  where  a  shipper  of  goods  had  received  a  propo- 
sition from  the  owners  of  a  vessel,  for  the  carrj'ing  of  certain 
articles  of  merchandise  at  certain  rates.  The  shipper  had  a 
personal  interview  with  the  owners  and  endeavored  to  obtain 
a  contract  for  the  transportation  of  the  goods  at  reduced  rates, 
but  failed  in  obtaining  the  concession.  Subsequently,  he  saw 
their  accent,  and  conceal  in  o-  the  fact  of  his  interview  with  the 
principals,  obtained  a  written  contract  from  him  upon  more 
favorable  terms  than  the  owners  would  agree  to.  The  vessel 
was  accordingly  laden,  and  the  captain,  supposing  the  contract 
to  be  binding,  signed  bills  of  lading  in  conformity  therewith. 
It  was  held  that  as  the  shipper  had  reason  to  know  that  the 
agent's  authority  was  limited,  he  would  be  charged  with 
notice  of  that  fact,  and  consequently  the  owners  were  not 
bound  by  the  action  of  eitlier  of  their  agents  who  exceeded 
their  authority,  and  could  command  the  regular  and  custom- 
ary price  for  the  carriage."' 

§666.  Aj?ent  to  Negotiate  Bills  and  Notes.  —  An  agent  who 
is  intrusted  with  the  disposal  of  negotiable  instruments  is 
usually,  to  all  appearance,  the  regular  holder.  And  when  he 
disposes  of  such  paper  by  sale,  pledge  or  otherwise,  contrary 
to  the  orders  of  his  principal,  to  ?cho)ia  Jide  purchaser  without 

'  See  Ante  i,  mi. 

» Barnard  v.  Wlieeler,  34  Me.,  412. 


NOTICE    OF    AGENCY.  301 

notice,  tlie  principal  will  be  bound  by  the  transaction,  though 
the  holder  took  thein  without  any  inquiry  at  all;  "for  it  is 
said  that  the  title  of  the  holder,  in  case  of  negotiable  instru- 
ments, is  derived  from  the  instrument  itself,  and  not  from  the 
title  wliich  the  party  has  from  whom  he  received  them."^ 

§  667.  Subsequent  Ratification.  —  Even  where  the  relation  of 
principal  and  agent  does  not  exist,  either  in  fact  or  appear- 
ance, at  the  time  of  the  contract,  under  certain  circumstances, 
the  obligation  may  be  rendered  binding  upon  the  principal  by 
subsequent  ratification;  but  here  the  law  of  notice  comes  into 
operation  as  affecting  the  principal.  For  the  ratification  of 
the  acts  of  one  falsely  assuming  to  act  as  the  agent  of  another, 
in  order  to  be  effectual,  must  be  with  a  full  knowledge  of 
the  circumstances.'^ 

§668.  Ratification  with  Notice  Binds  Principal.  —  But  where 
the  principal  has  been  duly  notified  of  the  acts  of  his  pre- 
tended agent,  he  may,  not  onl}^  by  express  approval,  but  by 
his  conduct,  in  accepting  the  benefits  to  be  derived  from  the 
transaction,  or  by  protracted  silent  acquiescence,  estop  himself 
from  evading  its  attendant  liabilities;  for  it  is  the  duty  of 
such  an  involuntary  party  to  a  contract,  as  soon  as  he  is  notified 
thereof,  to  signify  his  disapproval  without  unnecessary  delay, 
by  giving  notice  to  the  other  party .^  And  if  the  transaction 
which  he  proposes  to  repudiate  consists  of  a  purchase  of 
goods  in  his  behalf,  he  should  return  the  goods,  and  this  notice 
of  disapproval,  and  restitution  should  take  place  with  equal 
promptness,  Mdiether  he  seeks  to  deny  the  agency  itself,  or 
only  claims  that  the  agent  has  exceeded  his  authority.* 

§669.  Silent  Acquiescence  will  Release  Agent.  — It  is  also  held 
in  the  case  last  cited,  that  the  silent  acquiescence  of  the  prin- 
cipal after  notice,  will  release  the  agent  from  liability  for  dis- 

'  Bay  ?j.  Coddington,  ")  .Johns.  Ch.,  54 ;  S.  C,  20  Johns.,  C37;  Story  on 
Agency,  §  228. 

■'  Nixon  V.  Palmer,  8  N.  Y.,  398. 

»Summerville  v.  Hannibal  &  St.  J.  R  R.  Co.,  62  Mo.,  391;  Home  Life 
Ins.  Co.  V.  Pierce,  75  Ills.,  420;  Henderhen  v.  Cook,  66  Barb.,  21. 

^Johnson  v.  Jones,  4  Barb.,  3'j9;  Bray  v.  Gunn,  53  Ga.,  144. 


302  PRINCIPAL    AND    AGENT. 

obeying  instructions.  So,  where  an  action  was  brought 
against  a  naval  connnauder,  for  his  acts  in  a  public  capacity, 
in  excess  of  the  authority  conferred  by  his  instructions,  it  was 
lield  that  the  approval  of  his  government,  after  due  notice  of 
the  circumstances,  rendered  it  the  act  of  government,  and 
the  public  agent  could  not  be  held  civilly  liable  to  one  injured 
by  such  acts.^  But  the  mere  fact  of  ratification  of  a  single 
transaction  as  purchasing  agent,  will  not  justify  persons  in 
giving  him  credit  as  such,  fifteen  months  afterwards,  when  he 
pretends  to  be  acting  for  the  same  principal.^ 

§  670,  Contract  iu  Name  of  Agent  Binding.  —  Where  one  has 
dealino^s  with  an  ai^ent,  knowing  him  to  be  acting  in  that 
capacity,  the  contract  entered  into  between  them  will  not  only 
bind  the  principal,  but  will  bind  the  other  party  to  the  prin- 
cipal, though  the  transaction  is  in  the  name  of  the  agent.^  In 
this  case  a  marine  polic}'  of  insurance  was  taken  out  in  the 
name  of  the  agent,  with  notice  to  the  insurer  that  it  was  for 
the  principal's  benefit,  and  the  company  was  not  allowed  to 
reduce  the  amount  of  the  claim  for  loss, by  set-oft' of  a  debt 
against  the  agent  personally;  though  the  premium  note  given 
by  the  agent  in  his  own  name  was  deducted,  as  being  the  debt 
of  tlie  principal. 

§  671.  Principal  Bound  tliongh  Agency  Concealed,  or  Revoked 
Witliout  Notice. — Hnsband  and  AVife.  —  A  contract  made  by  an 
agent  for  his  principal,  m^y  bind  the  principal  though  at  the 
time  the  other  contracting  party  may  have  no  notice  of  the 
agency,  and  believe  the  agent  to  be  the  real  party  with  whom 
he  is  contracting.*  Though  in  case  of  a  concealed  agency,  a 
subsequent  disclosure  does  not  dej)rive  the  other  party  of  his 
rijcht  of  action  against  the  agent,  who  concealed  the  name  of 
liis  principal.  An  action  may  be  maintained  against  the  prin- 
cipal, because  he  received  the  benefit  of  the  contract,  and  against 
the  agent  because  it  was  to  him  the  credit  was  o-iven,  on  liis  own 

'  Buron  v.  Deuman,  3  Excli..  107. 

^  Clippies  V.  Whelan,()l  iMo.,583.  See,  also,  Everett  -v.  Sallu?,  15  Weiul.,  474. 

^Hulbert  v.  Pacific  Insurance  Co.,  2  Sumn.,  471. 

■*  lagelhart  «j.  Thousand  Island  Hotel  Co.,  14  N.  Y.  Sup.  Ct.,  547. 


NOTICE    OF    AGENCY.  303 

representations;  but  there  can  only  be  one  satisfaction.'  And 
where  a  previously  subsisting  agency  has  been  revoked  witli- 
out  notice  to  the  party  accustomed  to  have  dealings  with  the 
principal  through  such  agent,  the  liability  of  the  principal  will 
attach  to  all  transactions  in  the  name  of  the  principal,  within 
the  apparent  scope  of  the  agent's  authority  until  notice  of  re- 
vocation.^ The  principal's  estate  has  also  been  held  when  such 
agency  was  revoked  Ijy  his  own  death,  and  the  transactions 
occurred  in  good  faith,  before  notice  of  sucli  death,  either  to 
the  agent  or  the  other  party .^  But  nnder  a  similar  state  of 
facts,  such  transactions  were  held  void  though  made  in  good 
faith  and  in  ignorance  of  the  principal's  death.*  The  doctrine 
of  agenc}'  has  been  applied  to  the  relation  of  husband  and 
wife,  in  order  to  account  for  the  former's  liability  for  the 
latter's  contracts,  and  hence  the  acts  which  amount  to  a  revo- 
cation of  such  aofencv,  and  what  is  notice  of  such  revocation  to 
those  giving  her  credit.  The  learning  heretofore  laboriously 
expended  in  that  direction  has  seemed  to  involve  itself  in  such 
inconsistencies,  that  it  may  now  well  be  doubted  whether  the 
husband's  liability  for  the  debts  contracted  by  his  wife  rests 
upon  the  doctrine  of  implied  agency.  Where  it  is  so  held,  how- 
ever, such  agency  is  considered  as  revoked  by  the  wife's  aban- 
donment of  her  husl)and's  bed  and  board,  especially  where  she 
is  living  in  adultery  with  another,  and  her  notoriously  living 
apart  is  regarded  as  notice  of  the  revocation  of  the  agency.^ 
But,  on  the  other  hand,  if  he  puts  her  away,  or  her  desertion  of 
him  is  because  of  his  adultery,  he  still  remains  liable  as  before, 

'  Beymer  ».  Bonsall,  79  Penn.  St.,  298. 

« Olafflin  ■».  Lenlieim,  6(5  N.  Y.,  301 ;  McNeilly  v.  Continental  Life  Ins.  Co._ 
Jrf.,  23;  Spencer  i-.  Wilson,  4  Munf.,  130;  Morgan  v.  Stell,  5  Binn.,  305; 
Beard  «.  Kirk,  11  N.  il.,  307. 

'Cassiday  v.  McKenzie,  4  W.  &  S.,  283;  Smout  c.  Ilbery,  10  M.  &  W.,  1; 
Watson  A  King,  4  Camp.,  272. 

*Ilig3  ®.  Cage,  2  Humph.  (Tcnn.),  3.~)0. 

'Brown  «.  Patton,  3  JIumpii.  (Tenu.),  135;  Baker  v.  Barney,  8  Johns.,  72; 
Robison  v.  Goswold,  0  Mod.,  171;  Cancy  y.  Patton,  2  Ashm.  (Penn.),  140; 
Hunter  %.  Boucher,  3  Pick.,  289 ;  Morris  v.  Martin,  1  Str.,  647 ;  Manwairing 
e.  Sands,  76.,  706;  McCulchen  y.  McGahay,  11  Johns.,  281. 


304  PRINCIPAL    AND    AGENT. 

notwithstanding  tlie  fact  that  he  gives  express  notice  to  those 
who  supply  her  wants,  not  to  give  her  credit  on  his  account.^ 


II.  Notice  to  an  Agent. 


§672.  Notice  to  A,!?ent  is  Notice  to  Principal. 

673.  General  Application  of  the  Rule. 

674.  Eifect  of  Notice  Depends  upon  Nature  of  Agency. 

675.  Executive  Officer  of  a  Bank. 

676.  Notice  to  Trustees. 

677.  Bound  by  Agent's  Unlawful  Acts. 

678.  Person  Misled  by  Acts  of  Principal. 

679.  Wife  Affected  with  Husband's  Knowledge. 

680.  C'Onfined  to  Transactions  in  which  he  is  Active. 

681.  Notice  to  One  of  Several  Agents  Sufficient. 
683.  Director  of  a  Banli. 

683.  Corporation  not  Alfected  with  Every  Fact  Known  to  Directors. 

684.  Joint  Purchasers  not  Principal  and  Agent. 

685.  The  Same  Kind  of  Notice  to  Principal  as  to  Agent. 

686.  To  Agent  of  Agent  not  Sufficient. 

687.  Place,  Manner  and  Time  of  Acquiring  Knowledge. 

688.  Same — When  to  be  Considered. 

689.  Knowledge  Acquired  During  Agency. 

690.  Agent's  Duty  to  Communicate. 

691.  Where  Agent's  Authority  Depends  iipon  Ratification. 
693.  Notice  to  Attorneys — Breach  of  Confidence  to  Disclose. 

693.  Executor  and  Administrator. 

694.  Knowledge  of  Trustee  before  Creation  of  the  Trust. 

695.  Notice  of  Torts  of  Agents  and  Servants. 

§  672.  Notice  to  Agent  is  Notice  to  Principal.  —  The  rule  of  law 
that  cliarges  the  principal  with  notice  of  every  fact  coming  to 
the  knowledge  of  his  agent,  which  is  connected  with  the  busi- 
ness in  which  the  agent  is  employed,  may  be  tersely  expressed 
thus:  Notice  to  an  agent  is  notice  to  the  principal}     It  is 

>  Sykes  v.  Halstead,  1  Sandf ,  483;  Etherington  v.  Parrot,  1  Salk.,  118. 
*Astor  V.  Wells,  4  Wheat.,  4GG;  Bracken  v.  Miller,  4  W.  &  S.,  103;  Reed's 


NOTICE    TO    AN    AGENT.  305 

generally  rendered,  as  constructive  notice  to  the  principal ; 
but  it  is  at  least  doubtful  wliether  this  is  a  correct  use  of  the 
word  "  constructive,"  as  applied  to  the  law  of  notice.^  To 
employ  it  in  this  connection  is  only  to  introduce  confusion  in 
legal  terminology,  by  giving  to  a  word  a  peculiar  signification, 
where  it  has  quite  a  different  one  when  applied  to  odier 
branches  of  the  same  subject.  To  qualify  in  this  manner  the 
notice  which  is  given  through  an  agent,  would  be  to  cut  off 
entirely  from  the  possibility  of  notice  a  large  class  of  litigants, 
in  cases  requiring  actual  notice.  Corporations  can  only  act 
through  agents,  in  the  transaction  of  their  business,  and  there 
are  matters,  of  which,  to  affect  them,  they,  as  well  as  individ- 
uals must  have  actual  notice,  as  in  case  of  equities,  affecting  ne- 
gotiable instruments,  or  secret  trusts  affecting  the  title  to  lands 
purchased,  by  the  party  to  be  charged  with  notice.'^  Whether, 
therefore,  the  notice  by  which  the  principal  is  to  be  affected 
is  actual  or  constructive,  depends  upon  the  manner  in  which 
it  is  brought  home  to  the  agent.  If  the  agent  has  actual 
notice,  the  principal  is  charged  with  notice  of  the  same  kind. 
If  the  agent  is  constructivel}'^  notified,  so  is  the  principal.^ 
But  if  we  wish  to  state  the  rule  with  greater  accuracy,  its  true 
meaning  may  be  given  by  stating  it  as  it  is  universally  under- 
stood that  notice  to  an  agent  is  equivalent  to  notice  to  the 
principal. 

§  673.  General  Api)lication  of  the  Rule.  — This  is  one  of  those 
principles  of  jurisprudence,  which  is  so  modified  in  its  appli- 
cation to  different  cases,  as  to  raise  a  doubt,  whether  in  the 
form  in  which  it  is  usually  expressed,  it  may  fairly  be  desig- 
nated as  a  rule.  It  is  true  that,  for  all  the  purposes  of  the 
business  to  which  the  agency  applies,  the  agent  stands  in  the 

Appeil,  ;:54  Penn.  St.,  207;  Mech's  B'k  v.  Seton,  1  Pet., 309;  Jackson  ».  Sharp, 
9  Johns.,  162;  Jackson  v.  Winslow,  9  Cow.,  18;  Jackson  v.  Leek,  19  Wend., 
339;  Bank  of  U.  S.  v.  Davis,  2  Hill,  451;  Fuller  v.  Bennett,  2  Hare,  402; 
Sheldon  v.  Cox,  2  Eden,  224;  Slerlin-'  Bridge  Co.  o.  Baker.  75  III.,  139. 

'  Ante  Ch.  I.,  Constructive  Notice. 

"Bracken  v.  Miller,  4  W.  &..  S.,  102.     Si-e  Aate  i:  31  et  acq. 

*  Jones  V.  B.imford,  21  Iowa,  217. 
20 


306  PKINOH'AL    AND    AdKNT. 

place  and  stead  of  the  priiici])al,  and  the  knowledge  which  he 
acquires,  in  connection  with  the  particular  business  of  the 
principal,  in  which  such  afjent  is  engaged  at  the  time,  will  be 
attributed  to  the  principal,  whether  in  fact  communicated  or 
not.'  But  it  will  be  noticed  that  this  proposition  does  not 
embrace  man}-  of  the  cases  that  would  fall  within  the  general 
statement. 

§  674.  Effect  of  Notice  dex)eu(ls  upon  Nature  of  Agency.  —  As 
we  have  seen  in  the  next  preceding  title  that  whether  the 
principal  is  bound  bj  contracts  entered  into  by  the  agent, 
depends  upon  the  nature  and  extent  of  the  agencj,  so  does  the 
effect  upon  the  principal,  of  notice  to  the  agent  depend  upon 
the  same  conditions.  And  the  great  variety  of  circumstances 
affecting  the  relation  of  principal  and  agent,  with  respect  to 
the  matter  under  consideration,  renders  it  exceedingly  difficult 
to  arrange  them  under  the  two  heads  of  agents  with  general , 
and  agents  with  special^  powers.  For  whether  the  agent  be 
one  exercising  general  or  special  authority,  it  is  quite  certain 
that  his  agency  must  have  some  direct  connection  witli 
the  matter,  with  reference  to  which  notice  is  given.^  As, 
where  one  who  was  the  agent  of  a  railroad  company,  and 
residing  in  the  State  of  Iowa,  became  cognizant  of  the  fact 
that  there  were  two  towns  of  the  same  name  in  that  state,  and 
another  agent  of  the  same  company,  who  resided  in  Illinois, 
being  ignorant  of  that  fact,  shipj^ed  goods  belonging  to  plain-, 
tiff  to  one  of  such  towns,  which  was  the  only  one  he  knew  of, 
but  which  proved  not  to  be  the  one  intended  by  the  consignor, 
it  was  held  that  the  company  was  not  to  be  charged  with 
notice,  by  reason  of  the  knowledge  of  its  Iowa  agent,  that 


'  Whitehead  v.  Wells,  39  Ark.,  JI9.  Notice  to  the  local  agent  of  an  Insur- 
ance Company  in  connection  with  tin;  risk  assumed  on  behalf  of  the  com- 
pany, is  notice  to  his  principal,  Coolidge  «.  Charter  Oak  Life  Ins.  Co.,  1 
Mo.,  App.,  109. 

'^Blumenthal  v.  Brainard,  ;>H  Vt.,  403;  Hayward  c.  National  Ins.  Co.,  53 
Mo.,  181;  Warwick  y.  Warwick,  :j  Atk.,  39-4;  Mechanic.^'  Bank®.  Shuum- 
burg,  38  Mo.,  33H. 


NOTICE    TO    AX    Ar.ENT.  307 

there  were  two  towns  of  the  same  name,  so  as  to  render  it  lia- 
ble for  the  act  of  their  Illinois'  agent,  as  for  negligence.^ 

§  675.  Executive  Officer  of  a  Bank.  —  Where  the  cashier  of  a 
bank  was  ex-officio  a  member  of  the  discount  committee,  in 
the  absence  of  evidence  to  the  contrary,  he  was  presumed  to 
have  been  present  at  the  deliberations  of  the  committee  in 
reference  to  a  bill  presented  for  discount,  and  any  knowledge 
which  he  may  have  had  of  equities  subsisting  against  such 
bill,  was  held  sufficient  to  charge  the  bank  with  notice  there- 
of.^ It  is,  however,  unnecessary  iii  general,  to  find  these 
•collateral  circumstances,  either  as  legal  presumptions  or  as 
facts  established  by  evidence,  in  order  to  charge  a  banking 
■corporation  with  notice  of  equities  against  paper  discounted  in 
the  course  of  its  business,  when  the  president,  cashier,  or 
•other  executive  officer  has  knowledge  of  such  equities.^  In  the 
case  last  cited,  the  cashier  of  the  bank  was  also  Treasurer  of 
the  town,  dieting  as  such  Treasurer,  he  gave  the  note  of  the 
town  to  the  bank,  for  the  purpose  of  effecting  a  loan  for  his 
own  use.  As  an  officer  of  the  bank,  having  charge  of  its  loans, 
he  accepted  the  paper,  and  it  was  held  that  his  knowledge  of 
the  fact  that  he  was  acting  without  authority  as  an  officer  of 
the  town,  was  the  knowledge  of  the  bank.* 

§  676.  Notice  to  Trustees. —  So,  notice  to  one  of  the  directors 
of  a  bank,  he  being  a  member  of  the  discount  committee,  has 
been  decided  to  be  notice  to  the  banking  corporation;  and  that 
what  was  sufficient  to  put  hira  upon  inquiry,  w'ould  also  charge 
the  corpciration  with  the  duty  of  making  inquiry  in  regard  to 

'  Congar  v.  C.  k,  N.  W.  R.  It.  Co.,  24  Wis.,  ,157.  Notice  to  a  "  cuiler  " 
whose  duty  it  was  to  call  conductors  as  they  appeared  on  the  list  was  not 
notice  to  the  company-  of  the  ineiompetcncy  of  a  particular  conductor  on  such 
list.  The  notice  to  bind  the  company  should  have  been  jyiven  to  tiie  train 
manager;  Mich.  Cent.  R.  R.  Co.  v.  Dolan,  'o2  Mich.,  .510;  Davis  v.  D.  &  M. 
R.  R.  (/'o..  20  Mich.,  10.");  but  notice  to  an  engineer  of  defects  in  machinery 
"lield  sufficient  to  render  comjiMny  responsible  for  the  consequences.  Nash- 
ville R.  R.  Co.  0.  Elliott,  1  Cold.  (Tenn.),  611. 

<"  Bank  of  America  v.  McNeil,  10  Bush.,  ."54. 

'Bank  of  New  Miltbrd  v.  Town  of  New  Milford,  :Jf>  Conn.,  93. 

*See  Willard  v.  Buckingham,  36  Conn.,  3!J-'). 


308  PRINCIPAL    AND    AGENT. 

the  same  matter.'  So,  also,  where  E.  executed  a  deed  of  trust 
to  secure  a  debt  due  M,  and  subsequently  executed  another 
deed  of  trust  on  the  same  property,  to  N  and  I,  as  trustees, 
to  secure  a  debt  due  a  bank  of  which  X  was  the  attorney,  and 
I,  a  director,  both  the  trustees  having  received  notice  of  the 
jirior  incumbrance,  before  the  execution  of  the  subsequent 
one,  it  was  held  that  notice  to  them  was  notice  to  their  princi- 
pal, and  consequently  the  prior  incumbrance  should  take 
precedence,  notwithstanding  the  subsec^ueut  deed  was  first 
recorded," 

§  677.  Bound  by  Agent's  Unlawful  Acts.  —  AVhether  the  agency 
be  general  or  special,  and  whatever  be  the  title  or  designation 
of  the  agent,  if  he  has  sufficient  authority  in  the  premises  to 
contract  for  the  benefit  of  his  principal,  that  which  would 
affect  the  validity  of  such  contract,  if  known  to  the  principal 
at  the  time  of  making  it,  will  have  the  same  effect  when  known 


'  The  Fulton  Bank  b.  Bciuedict,  1  Hall,  480. 

"^  Mj-ers  i\  Ross,  3  Head  (Teun.),  60.  But  in  order  to  atfect  cestui  que 
trusts  with  notice  to  trustees,  tliere  must  be  subsisting  between  them  the 
relation  of  principal  and  agent.  It  was  accordingly  held,  in  a  quite  recent 
case,  that  where  the  bonds  belonging  to  a  railroad  company  were  conveyed 
in  trust  to  certain  parties  lor  the  purpose  of  securing  its  own  bonds,  there- 
after to  be  issued  and  negotiated,  notice  of  defenses  to  the  bonds  so  held, 
being  brought  home  to  one  or  more  of  such  trustees,  would  not  bind  the 
holders  of  the  bonds  so  secureil.  The  decision  is  based  upon  the  ground 
that  the  trustees  were  the  appointees  of  the  company,  and  not  of  the  cestuu 
que  trust.  Johnson  County  v.  Thayer,  5  Cent.  L.  J.,  24o.  See,  also,  Curtis 
V.  Leavitt,  15  JST.  Y.,  194  But  the  recent  case  of  Johnson  v.  Lallin,  decided 
by  Judge  Dillon,  and  reported  in  6  Cent.  L.  J.,  124,  suggests  a  modiiication 
of  the  doctrine  as  laid  down  in  the  text.  There  the  agent  acted  under  the 
authority  of  a  letter  of  attorney,  executed  iu  blank,  in  transferring  certain 
shares  of  stock,  upon  the  books  of  the  company.  At  the  time  the  transfer 
was  entered,  the  acting  attorney,  with  whose  name  the  blank  had  been  filled, 
knew  that  the  purchaser,  an  officer  of  the  bank,  was  unlawfully  using  the 
funds  of  the  corporation  to  make  payment  for  the  stock.  The  negotiation 
for  the  stock  was  between  the  selling  broker  and  the  purchaser,  and  the 
transaction  was  held  complete  as  betT.'een  the  parties,  by  the  transfer  of  the 
certificates  and  the  receipt  of  the  money;  so  that  there  was  no  such  relation 
subsisting  between  the  attorney  making  the  transfer  and  the  original  seller 
of  the  stock  as  would  charge  the  latter  with  notice  of  fiicts   within   the 


XOTICE    TO    AX    AGENT.  309 

only  to  the  agent.'  Thus,  where  a  contract  was  made  by  a  ser- 
vant for  his  master,  on  Sunday,  though  this  fact  was  unknown 
to  the  master,  such  contract  could  not  be  enforced,  where  it 
could  not  have  been  had  it  been  entered  into  on  that  day  with 
the  knowledge  of  the  master.^  So  where  an  agent  to  sell  goods 
sold  with  the  knowledge  that  the  goods  were  purchased  for  an 
unlawful  purpose,  the  principal  would  be  affected  by  such 
knowledge,  and  could  not  recover  in  an  action  for  the  price.* 
§  678.  Person  Misled  by  Acts  of  Principal.  —  Whatever  be  the 
limits  upon  the  authority  of  the  agent,  the  principal  will  be 
bonnd  by  notice  to  him  as  to  an  agent  with  general  powers, 
when  the  conduct  of  the  principal  has  been  such  as  to  lead  to 
the  belief  that  the  ay-encv  was  general.* 


knowledge  of  tlie  former  conteinporaneoush'  with  his  action  under  the 
power  of  attornej'.  Had  tlie  facts  been  known  to  tlie  brolver  employed  to 
make  tlie  sale,  there  seems  no  doubt  that  the  case  would  have  been  differ- 
entlj-  decided.  But  if  the  attorney  in  fact  was  not  the  aojent  of  the  party 
by  whom  the  ))lank  instrument  was  executed,  at  the  very  time  he  acted,  by 
whose  authorit)-  did  he  make  the  transfer?  This  opens  the  question  of  how 
far  a  part3Ms  charsie.tble  with  notice  of  facts  coming  to  the  knowledge  of 
his  agent,  while  acting  under  written  authority  executed  in  blank.  This 
question,  however,  was  not  deemed  of  vital  importance  to  the  case,  for  the 
reason  that  the  seller  had  a  right  to  demand  its  transfer  on  the  books  upon 
the  completion  of  tlie  transaction  between  himself  and  the  purchaser,  and 
that  direct  personal  notice  to  him  after  the  paj'ment  of  the  purchase  money 
would  have  been  too  late  to  affect  him.  It  was  also  decided  in  this  case 
that  shareholders  were  not  bound  to  take  notice  of  irregularities  on  the  part 
of  directors  in  respect  to  the  transfer  of  their  shares,  and  that  such  share- 
holders, even  though  they  be  directors,  in  transferring  their  stock,  are  not 
Viound  to  take  notice  of  the  books  of  account  of  the  company — citing  with 
approval,  Bargate  v.  Shortrldge,  5  House  of  Lords  Cas.,  2!)7;  Taylor  v. 
Hughes,  2  .Tones  tt  Lat.,  24;  Ex  parte  Bagge  re  North  Coal  Co.,  18  Beav., 
163;  Cartmell's  Case,  U  Ch.  App.,  (iOl;  Hill  v.  Manchester,  &c.,  Co.,  2  Nev. 
&  M.,  r^Td-r)  Barn.  &  Adol.,  874;  Haynes  v.  Brown,  86  N.  H.,  568. 

'Tlie  Distilled  Spirits,  11  Wall.,  356;  Bierce  v.  Red  Bluff  Hotel  Co.,  31 
Cal.,  160. 

5  Smith  5.  Sparrow,  4  Bing.,  84;  Mosley  v.  Hatch,  108  Mass.,  517;  Ster- 
ling Bridge  Co.  v.  Baker,  75  111.,  i;?9. 

•*Siiitu  Woodhall,  113  Mass.,  3!»1. 

*Keenan  v.  Missouri  Ins.  Co.,  12  Iowa,  12G. 


810  rUlNCIPAL    AKD    AUKNT. 

§  679.  Wife  AffecttMl  with  Husband's  Knowledge.  —  There  are 
cases  in  wliicli  tlie  knowledge  of  the  husband,  when  acting  as 
agent  of  tlie  wife,  has  been  held  to  affect  her  interest  in  the 
transaction.  As  whei-e  propert}^  was  purchased  for  the  wife, 
bv  the  husl)and  acting  as  her  agent,  his  knowledge  that  a  fraud 
was  being  perpetrated  was  held  sufiicient  to  charge  her  with 
notice  of  such  fraud.' 

§680.  Confined  to  Transactions  in  wliicli  lie  is  Active.  —  But 
though  the  husband,  by  virtue  of  the  marital  relation,  is  a 
sort  of  general  agent  to  transact  business  for  his  wife,  acting 
Avithout  any  authority  specially  conferred  by  her,  the  knowl- 
edge possessed  by  him  will  not  affect  her  with  notice  in  trans- 
actions with  which  he  has  nothing  to  do.^  And  even  where  a 
liusband  received  a  conveyance  to  himself  and  wife,  by  which 
they  became  j)ossessed  of  an  estate  by  the  entirety,  it  was 
held  that  notice  to  the  husband  of  a  prior  unrecorded  mort- 
gage would  not  operate  as  notice  to  the  wife,  so  as  to  affect  her 
title  by  survivorship.^ 

§  681.  Notice  to  one  of  several  Agents  Sufiicient.  —  That  there 
are  several  agents  who  act  jointly  in  the  conduct  of  the  busi- 
ness, with  reference  to  which  it  is  sought  to  affect  the  prin- 
cipal with  notice,  does  not  render  it  necessary  in  order  tO' 
cliarge  the  ]u-incipal,  to  bring  liome  to  all  the  agents,  a  knowl- 
edge of  such  fact.  Xotice  to  one  will  be  as  effectual  as  notice 
to  all.^  There  being  no  difference  between  the  obligation  rest- 
ing upon  one  of  several  joint  agents,  and  that  resting  upon  a 
mle  agent,  in  regard  to  communicating  facts  which  come  to 
his  knowledge,  there  can  be  no  difference  in  the  manner  in 
which  the  possession  of  such  knowledge  will  aff'ect  the  prin- 
cipal. Where  the  principal  is -a  corporation,  and  imposes 
upon  its  directors  collectively,  the  duty  of  managing  its  affairs 
and  guarding  its  interests,  and  one  of  such  directors  is  guilty 

'  Clark  V.  Fuller,  ;39  Coun.,  238;  White  i\  King,  53  Ala.,  1G3. 
'  Pringle  v.  Dunn,  :]7  Wis.,  449. 
■'■  Snyder  v.  Sponablc,  1  Hill,  507 

'  Fulton  Bank  t>.  N.  Y.  &  S.  Canal  Co.,  4  Paige,  127;  North  River  Bank 
f).  Aymar.  3  Hill,  262. 


NOTICE    TO    AN    AGKNT.  311 

of  a  breach  of  dutj  in  failing  to  communicate  to  the  board, 
when  officially  assembled,  or  to  the  officers  of  the  corporation, 
the  knowledge  M-Jiich  he  has  obtained  in  relation  to  matters  in 
which  the  corporation  is  interested,  it  should  be  the  sufferer 
by  such  concealment,  rather  than  an  innocent  party  whose 
interests  are  involved  in  the  transaction, 

§682.  Director  of  a  Bank.  —  Accordingly,  in  a  case  where 
one  of  the  directors  of  a  bank  had  notice  of  the  fraudulent 
perversion  from  the  objects  for  which  they  were  drawn,  ot 
certain  bills,  and  with  that  knowledge,  was  present  at  a  meet- 
ing of  the  board  where  the  same  bills  were  presented  for  dis- 
count, his  knowledge  was  properly  held  to  be  the  knowledge 
of  the  bank.^ 

§683.  Cori)oration  not  Affected  with  every  Fact  known  to  Direct- 
ors.—  However,  the  mere  fact  that  a  bank  director  is  in  pos- 
session of  certain  knowledge  which  would  prevent  his  becom- 
ing an  innocent  holder,  would  not  aftect  the  bank  if  the  paper 
should  be  received  there  and  discounted,  without  liis  knowl- 
edge. ■  It  could  hardly  be  his  duty  to  report  to  his  bank  every 
fact  coming  to  his  notice,  in  relation  to  all  the  negotiable 
paper  of  which  he  may  have  any  knowledge,  where  he  had 
received  no  intimation  that  snch  paper  would  be  presented 
there  for  discount.'^  But  some  of  the  cases  cited  in  the  note 
will  be  found  to  go  much  farther,  and  take  the  ground  that 
the  bank  cannot  be  affected  by  notice  to  one  of  its  directors, 
for  the  reason  that  such  directors,,  in  their  individual  capacity, 
are  neither  officers  nor  agents  of  the  corporation.  This  dis- 
tinction, however,  is  not  supported  by  the  weight  of  authority. 
The  best  considered  cases  do  not  seem  to  favor  the  exemption 

'  Bank  of  United  States  c.  Davis,  2  Hill,  451 ;  Nafl  Sccurily  B'k  v.  Cusli- 
man,  121  Mass.,  490;  Clerk's  Sav.  B'k  «.  Thomas,  2  Mo.  App.,  307; 
Edwards  v.  Thomas,  Id.,  282. 

^  Louisiana  State  Bank  v.  Senecal,  13  La.,  525;  General  Ins.  Co.  v.  U.  S. 
Ins.  Co.,  10  Md.,  517;  Farmers'  &  Citizens'  Bank  r.  Payne,  25  Conn.,  444; 
Nat'l  B'k  V.  Norton,  1  Hill,  572;  Washington  B'k  ».  Lewis,  22  Pick.,  24; 
Hartford  B'k  v.  Hart,  3  Day^  491. 


:U2  PRINCIPAL    AND    AGENT. 

of  corporations  from  the  duty  of  taking  notice  of  facts  known 
to  their  directors,  any  further  than  is  here  stated.^ 

§  684.  Joint  Purchasers  not  Principal  and  Ag?nt.  —  The  mere 
circumstance  that  two  persons  are  jointly  interested  in  a  pur- 
chase, will  not  establish  between  them  the  relation  of  mutual 
agency,  so  that  notice  to  one  will  affect  the  other,  even  with 
respect  to  the  property  of  which  they  are  joint  tenants.^  But 
when  notice  is  given  to  one  of  several  partners  in  connection 
with  the  business  of  the  partnership,  his  co-partners  will  be 
affected  ;  and  this  has  been  put  upon  the  ground  of  mutual 
agency.^ 

§  685.  The  Same  Kind  of  Notice  to  Principals  as  to  Agents.  — 
Notice  to  an  agent,  in  order  to  bind  the  principal,  need  not  be 
any  more  full  or  circumstantial  in  its  details  than  would  suf- 
fice had  it  been  directl}'  to  the  principal.  Where  a  subsequent 
purchaser  is  to  be  charged  with  notice,  it  is  not  essential  that 
the  agent  should  be  informed  of  every  fact  which  it  is  impor- 
tant for  the  princij^al  to  know.  It  will  generally  be  a  good 
notice  if  it  is  sufficiently  explicit  to  put  the  agent  upon 
inquiry  leading  to  the  truth.'' 

^6^G.  To  Agent  of  Agent  not  Sufficient. — To  have  the  effect 
of  bringing  knowledge  home  to  the  principal,  the  notice  must 
be  to  his  agent,  and  not  to  any  agent  or  attorney  employed  by 
such  agent.  It  was  so  held  where  the  question  arose  under  the 
general  bankrupt  law,  in  deciding  whether  or  not  the  principal 
had  received  a  preference.^  The  principal,  residing  in  Xew 
York,  employed  an  attorney  there  to  collect  a  sum  of  money 
due  from  a  debtor  resident  in  Omaha,  Nebraska.  For  purposes 
of  his  own  convenience,  and  without  consulting  his  client,  the 
attorney  employed  another  attorney  at  Omaha,  who,  being 
aware  of  the  debtor's  insolvent  condition,  collected  the  debt, 

*  iSupi-a. 

■  Flii'i-^^  V.  Maun,  3  Sumn.,  4K(i ;  Snyder  v.  Spoiiable,  1  Ilil),  .lfi7 ;  7  Id.,  437. 
'Watson  V.  Wells,  5  Conn.,  4(58. 

*  Barnes  v.  McClinton,  3  Penu.,  G7;  Fulton  Bank  )).  Benedict,  1  Hall,  480; 
Ante  §  33;  Hart  v.  Farmers'  &  Mechanics'  B'k,  33  Vt.,  2")2. 

'Hoover  v.  Wise,  91  U.  S.,  308;  «.  C,  3  Cent.  L.  ,J.,  27();  S.  C,  14  N.  B. 
R.,  204. 


NOTICE    TO    AN    AGENT.  313 

and  transmitted  the  sum  collected  to  the  l^ew  York  attorney, 
and  within  two  months  thereafter  the  debtor  was  declared 
hanknipt.  It  was  held  that  the  Omaha  attorney  was  the 
agent  of  the  attorney  l>y  whom  he  was  eraplo^'ed,  and  not  of 
the  client  who  ultimately  received  the  money.  Hence,  the 
notice  of  insolvency,  not  being  to  the  agent  of  the  creditor  he 
was  held  unaffected  thereby. 

^  687.  Place.  Manner  and  Time  of  Aeqnirinig:  Knowledge.  — 
When  at  the  time  of  a  transaction  by  one  acting  in  the  capacity 
of  agent,  the  recollection  of  the  fact  with  notice  of  which  it 
is  sought  to  charge  the  principal.^  is  present  to  the  mind  of  the 
agent,  wheresoever^  howsoever,  or  whensoever^  the  knowledge 
of  such  fact  was  obtained,  such  knowledge  will  be  the  knowl- 
edge of  the  principal,  provided  it  come  to  the  agent  in  a  man- 
ner that  he  might  communicate  it,  or  act  upon  it,  without 
being  guilty  of  a  positive  violation  of  duty.*  This  doctrine 
is  advanced  with  some  hesitancy,  not  because  of  any  doubt  as 
to  its  soundness,  on  principle,  or  as  to  its  being  supported  by 
the  best  authority  ;  but  there  has  been  such  a  contrariety  of 
opinion  expressed  upon  the  subject,  by  the  courts  of  the  differ- 
ent states,  that  it  would  be  impossible  to  make  any  statement 
of  a  general  rule  which  will  be  universally  accepted  and  acted 
upon. 

§  688.  Same — When  to  be  Considered.  —  In  cases  where  the 
doctrine  announced  above  is  questioned,  it  is  insisted,  either 
that  the  Jcnowledge  should  he  acquired  hj  the  agent,  during 
the  agency f  or  that  it  should  come  to  him  in  such  a  manner, 
and  under  such  circumstances,  that  he  may  he  presumed  to 

»LeNeve  r.  LeNcve,  3  Atk.,  040;  S.  C,  2  Lend.  Cas.  in  Eq.,  Pt.  1,  P.  ;!5; 
Brotherton  ?).  Hatt,  2  Vern.,  574 ;  Dresser  v.  Norwood,  17  C.  B.  N.  S.,  4()6 ;  Wil- 
liams «.  Tatuall,  29  III.,  553;  Wiley  »).  Knis^ht,  27  Ala.,  ;53();  The  Distilled 
Spirits,  11  Wall.,  356;  Hart  v.  Fanners'  vt  Mechanics'  Bank,  3;J  Vt.,  252; 
Patton  «.  Ins.  Co.,  40  X.  H.,  375.  See,  also,  Pritchett  v.  Sessions,  10  Bioh. 
Law.,  2!)3. 

■••Hood  v.  Fahncstock,  8  Watts,  4S9;  N.  Y.  Cent.  Ins.  Co.  r.  Xat.  Prot.  Ins. 
Co.,  20  Barb.,  4GH;  Sn\ith's  Ai)i)eal,  47  Penn.  St.,  128;  .Mclian  v.  Williams, 
48  Penn.  St.,  238;  Day  y.  Walmsley,  33  Ind.,  145;  Bliinujiitiial  v.  Brainard, 
38  Vt.,  403;   llayward  v.  National  Ins.  Co.,  52  Mo.,  181;   Warw-ick  y.  War- 


314  I'KINCIPAL    AND    AGKNT. 

have  eom niunieated  it  to  his  jprinci/pal}  There  cau  be  no 
doubt  that  wlieii  the  notice  comes  to  the  agent  before  the 
relation  is  established,  and  the  question  whether  at  the  time  of 
the  transaction  as  agent  the  recollection  of  the  fact  was  present 
to  his  mind,  depends  for  its  solution  upon  mere  inference,  or 
presumption  from  his  previously  acquired  knowledge,  tline 
is  a  very  important  matter  for  consideration.  If  the  fact  came 
to  the  knowledo:e  of  the  aG^ent,  lono-  before  the  commencement 
of  the  agency,  it  would  not  be  safe  to  infer  that  he  recollected 
it  when  the  transaction  with  the  agent  took  place.  And  in 
most  of  the  cases  where  time  is  insisted  on,  this  seems  to  be 
the  consideration  operating  upon  the  mind  of  the  court.  As, 
in  the  case  of  Warwick  v,  Warwick,^  the  agent  alleged  to  have 
been  possessed  of  knowledge,  was  dead,  and  there  seems  to 
have  been  no  evidence  that  he  recollected  the  fact,  when  acting 
as  agent  of  the  party  to  be  charged.  So  in  Day  v.  Walms- 
ley,^  goods  were  sold  to  the  defendant's  wife,  by  a  salesman, 
who,  previous  to  his  employment,  had  heard  in  an  idle  conver- 
sation, that  defendant  and  wife  had  separated.  There  being  no 
better  evidence  that  he  knew  of  the  fact  of  separation  at  the 
time  of  selling  the  goods,  it  was  held  that  this  would  not  be 
sufficient  to  affect  plaintiff,  the  employer  of  the  salesman,  with 
notice  of  such  fact.  So  also,  in  the  case  of  Bracken  v.  Miller,* 
the  knowledge  of  a  secret  trust  was  gained  by  the  attorney 
seven  years  before  he  was  emploA^ed  by  the  party  sought  to  be 
charged  with  notice  of  such  trust.  And  other  cases  might  be 
cited,  where  time  was  a  question  of  real  im])ortance  in  deter- 
mining the  validity  of  the  notice. 

wick,  3  Atk.,  291 ;  Xorris  t.  Le  Neve,  3  Atk..  20 ;  Mechanics'  Bank  v.  Shaum- 
burg,  38  Mo.,  228;  Howard  Ins.  Co.  «.  Halsey,  8  N.  Y.,  271;  McCormack  v. 
Wheeler,  36  111.,  114;  Houseman  ;;.  Mut'l.  Build.  &  Sav.  Ass'u,  81  Penn. 
St.,  250. 

"'  Winchester  c.  Baltimore  R.  li.  Co..  4  Md..  231 ;  La  Forge  Ins.  Co.  v.  Bell, 
22  Barb.,  54;  Thompbon  t-.  Cartwri -'■.:,  .33  Beavau,  178;  Kenedy  u  Green, 
3  Mylne  &  K.,  609. 

*  3  Atk.,  291. 

2  33  Ind.,  145. 

M  W.  &S.,  103. 


NOTICE   TO    AN    AGENT.  315 

§  689.  Knowledge  Acquired  during  Agency.  —  But  in  many  of 
those  cases  in  which  the  doctrine  is  recognized  that  notice 
should  come  to  the  agent  after  the  relation  has  been  estab- 
lished, an  exception  is  admitted  which  tacitly  concedes  that 
the  important  matter  to  prove  is  that  the  agent  was  cognizant 
of  the  fact  when  he  acted  for  his  principal,  and  not  that  he 
acquired  the  knowledge  at  any  paj-ticular  time.  The  excep- 
tional cases  are  those  where  the  transactions  follow  each  other 
so  closely,  tliat  it  is  regarded  as  impossil^le  for  the  agent  to 
have  forgotten  the  firsts  when  the  second  took  place.  It  is 
therefore  held,  that  the  agent's  knowledge,  acquired  in  the  course 
of  the  first  transaction,  would  be  notice  to  the  principal  though 
the  relation  of  principal  and  agent  onh'  subsisted  between 
them  with  respect  to  the  second  transaction.'  This  is  a  vir- 
tual abandonment  of  the  principle  upon  which  the  distinction 
is  founded 

§  690.  Agent's  Duty  to  Conimunioate. — The  restriction  of  the 
rule  to  cases  where  there  is  a  probability  that  the  agent  will 
communicate  the  knowledge,  seems  to  have  had  its  origin  in  a 
total  misapprehension  of  the  purposes  for  which  the  rule 
was  established.  It  tends  to  defeat  the  application  of  the 
doctrine  to  cases  where  it  is  most  essential  in  the  promo- 
tion of  good  faith  and  fair  dealing.  One  of  the  most  striking 
cases  of  tlie  application  of  this  distinction  is  that  of  Thomp- 
son V.  Cartwright.'^  Here  a  solicitor  acted  for  both  parties 
in  preparing  a  deed  which  contained  the  usual  covenants 
against  prior  incumbrances.  The  same  solicitor  had  previously 
prepared  a  mortgage  upon  the  identical  property,  which  mort- 
gage, however,  had  not  been  registered.  There  was  no  ques- 
tion of  the  fact  being  ])resent  to  the  solicitor's  recollection 
at  the  time  of  drawing  the  second  deed,  and  it  was  decided 
that  upon  the  party  sought  to  be  charged  with  notice,  rested 
the  burthen  of  overcoming  the  legal   presum])tion   that  his 

1  Winters.  Lord  Anson,  1  S.  «&  S.,  434;  S.  C,  3  Russ.,  488;   Hargreaves 
u  Rothwcll,  1  Keen,  154. 
'■'  33  Beav.,  178. 


316  PRINCIPAL    AND    AGENT. 

agent  had  coimnimicated  such  fact.  Xo  direct  evidence  was 
offered  upon  this  point;  but  the  court  held  that  the  fact  that 
the  solicitor  was  also  employed  by  the  party  whose  interest  it 
was  to  conceal  the  prior  mortgage,  was  sufficient  circumstan- 
tial evidence  that  it  was  concealed  from  the  principal,  and  he 
was  therefore  unaffected  by  the  agent's  knowledge.  Leaving 
out  of  consideration  the  probable  event  of  its  being  utterly 
impossible  for  the  agent  to  communicate  the  knowledge  in 
time,  the  case  cited  above  fairly  illustrates  the  danger  of  rest- 
ing the  rule  upon  the  presumption  that  the  agent  communi- 
cates the  knowledge  of  which  he  is  possessed,  unless  such 
presumption  is  conclusive.  The  doctrine  announced  in  this 
case  is  against  the  weight  of  authority,  both  in  England  and 
in  this  country.^ 

§  691.  Where  Agent's  Authority  Depends  ujwn  Ratification.  — 
If  one  without  authority  assume  to  act  as  the  agent  of 
another,  and  the  latter  take  the  benefit  of  the  unauthorized 
act,  by  claiming  rights  under  it,  or  otherwise  ratifying  the  acts 
of  his  self-appointed  agent,  he  must  take  such  benefit,  charged 
with  notice  of  such  matters  as  appear  to  have  been  within  the 
knowledge  and  recollection  of  the  agent  at  the  time  of  the 
transaction.^  In  the  case  cited,  the  grantor  in  a  prior  unre- 
corded conveyance  acted  as  the  agent  of  his  creditor  in  direct- 
ing the  levy  of  an  attachment  upon  the  same  property.  The 
creditor,  by  claiming  rights  under  the  levy,  ratified  the  agency, 
and  was  charged  with  knowledge  of  the. prior  conveyance, 
though  the  fact  was  never  communicated  to  him  by  the  agent. 
So,  where  B,  having  notice  of  an  incumbrance,  purchased  in 
the  name  of  M,  whom  he  afterwards  agreed  should  become 
the  purchaser  direct,  and  M  accordingly  paid  the  purchase 
money,  without  notice  of  the  incumbrance,  it  was  held  that 
although  he  did  not  employ  B,  nor  know  anything  of  the  pur- 


'  Willardt).  Buckiugbam,  ^(i  Conn.,  P.m-  Bank  of  U.S.  v.  Davis,  3  Hill, 
451 ;  The  Distilled  Spirits.  11  Wall.,  35();  Le  Neve  «.  Le  Neve,  3  Atk.,  646; 
6.  C.  2  Lead.  Cas.  Eq.  Pt.,  1  p.  351 ;  Brothertou  v.  Halt,  2  Veru.,  574 

"Hovey  v.  Blanchard,  13  N.  H.,  145. 


NOTICE    TO    AN    AGENT.  317 

chase  until  after  it  was  made,  yet  bj  his  subsequent  approval, 
he  made  B  his  a^^ent  ab  initio,  and  was  therefore  affected  with 
notice.'  In  general,  such  ratification,  to  bind  the  principal, 
must  be  made  with  full  knowledge  ;  but  when  the  principal 
relies  on  the  contract  made  by  his  unauthorized  agent,  as  a 
basis  of  recovery,  he  thereby  adopts  the  contract,  and  cannot 
escape  the  consequences  by  showing  that  he  was  not  fully 
informed  of  its  terms  and  conditions.^ 

§  692.  Notice  to  Attorneys — Breach  of  Confidence  to  Disclose. — 
It  seems  to  be  quite  generally  conceded  that  where  knowledge 
of  a  fact  is  acquired  by  an  attorney  while  in  the  course  of  the 
discharge  of  his  duties,  under  circumstances  that  w^ould  ren- 
der it  a  breach  of  professional  confidence  for  him  to  commu- 
nicate the  fact  to  another  client,  or  to  take  advantage  of  such 
knowledge  to  promote  the  interests  of  the  other  client,  the 
knowledge  of  the  attorney  would  not  be  imputed  to  his  client, 
from  whom  it  was  so  withheld.^ 

§  693.  Executor  and  Administrator.  —  It  has  also  been  held 
that  in  order  to  charge  an  executor  or  administrator  with  notice 
of  a  fact  affecting  the  interests  of  the  estate  of  decedent,  the 
knowledge  must  be  acquired  after  his  appointment,  at  least, 
not  during  the  life-time  of  decedent.''  But  under  the  later 
and  better  authorities,  both  English  and  American,  we  have 
seen  that  this  restriction  can  only  operate  to  weaken  the  pre- 
sumption of  notice  from  knowledge  previously  acquired,  and 
will  depend  upon  the  length  of  time  intervening.' 

§  694.  Knowledge  of  Trnstee  before  Creation  of  tl»e  Trust.  — 
This  rule  has  been  applied,  with  tlie  restriction  as  to  time,  to 
cases  where  it  was  sought  to  charge  with  notice  the  cestuis  que 
tritst,  or  beneficiaries  in  deeds  of  trust,  by  proving  notice  to 
their  trustees."   The  case  first  cited  in  the  note  is  one  of  those 

'  Jennings  v.  Moore,  2  Vern.,  (iO!). 
^Henderhen  v.  Cook.  66  Barb.,  21. 

•*  Hood  D.  Fahnestock,  8  Watts,  489;   McCormick  v.  Wheeler,  .36  111.,  115. 
"  Gold  V.  Deatl).  Hobart,  92;  Henry  v.  Morgan,  2  Binney,  497. 
*•  Ante  §  687,  et  seq. 

•Willis  r.  Vallette,  4  Mete.  (Ky.),  186;  Henrj'  v.  Morgan,  2  Bin.,  497; 
Ante  S  670. 


318  PRINCIPAL    AND    AGENT. 

in  which  the  general  principal  is  seized  upon  to  negative  the 
inference  that  knowledge  acquired  by  the  trustee,  long  before 
there  was  any  thought  of  the  deed  of  trust,  was  present  to 
his  recollection  when  he  became  the  trustee,  and  so  leave  the 
principal  an  avenue  of  escape  from  the  consequences  of  his 
trustee's  knowledge.  Had  the  same  general  restriction  been 
applied  to  the  case  of  Myers  v.  Ross,i  the  prior  incumbrancer 
would  have  been  defeated  in  a  case  where  notice  of  the  prior 
incumbrance  was  given  one  day,  and  the  party  notified  was 
made  trustee  in  the  subsequent  deed  of  trust  of  the  same 
property,  on  the  next.  In  fact,  under  a  strict  adhesion  to  this 
restriction,  beneficiaries  could  never  be  charged  with  notice  of 
prior  incumbrances  by  bringing  home  knowledge  to  their  trus- 
tees; for,  as  they  do  not  become  trustees  until  the  execution  of 
the  deed  by  which  the  trust  is  created,  it  would  be  impossible 
for  them  to  receive  the  notice  until  it  had  become  too  late  to 
communicate  it  with  any  effect. 

.  §  695.  Notice  of  Torts  of  Agents  and  Servants.  —  Notice  by 
which  the  liability  of  a  part}"  for  a  tort^  is  fixed,  may  come 
through  the  ao^ent,  with  like  efl'ect  as  when  communicated 
directly  to  the  principal.  As  where  the  superintendent  of  a 
street  railway  was  notified  of  the  misconduct  of  an  employe 
of  the  company,  toward  a  passenger,  the  knowledge  thus 
acquired  by  the  agent  was  regarded  ^s  the  knowledge  of  the 
principal,  and  was  held  sufficient  to  fix  the  company's  liability 
for  exemplary  damages  on  acc(_>unt  of  such  misconduct,  when, 
after  such  notice,  the  act  of  the  employe  was  approved."^  So 
where  a  servant  had  charge  of  his  master's  vicious  dog,  the 
master  having  no  knowledge  of  the  animal's  dangerous  dispo- 
sition, was  held  liable  for  injuries  committed  by  him,  upon 
the  ground  that  the  servant's  knowledge  was  equivalent  to 
notice  to  the  master.^ .  So  also,  in  an  action  for  damages,  for 
the   burning  of  plaiiitift''s  property,  by  sparks  escaping  froTri 

'  S  Head  (Tenn.),  60;  Ante  i  676. 

'Malick  c.  Tower  Grove  &  Lafayette  R.  Tl.  Co.,  57  Mo.,  17. 

*  Baldwin  ».  Cassella,  L.  R.,  7  Ex.,  32.'>. 


NOTICE    BY    AN    AOKNT.  319 

the  chimuey  of  defendant's  mill,  it  was  held  that  in  the  absence 
of  the  mill  owner,  notice  of  the  dangerous  condition  of  the 
chimney,  to  the  foreman  in  charge,  was  equivalent  to  notice 
to  his  employer.^ 


III.  Notice  by  an  Agent. 


§696.  Has  the  same  force  as  when  given  by  Principal. 

697.  Notice  of  Disliouor  of  Commercial  Paper. 

698.  Notice  to  Quit. 

699.  Written  or  Vcrl)ai. 

700.  Effect  of  Sub.iequent  Ratification. 

701.  Notice  Unauthorized  when  Given,  Valid  only  from  Time  of  Rati- 

fication. 


§696.   Has  the    Same    Force  as  when   iSjiveii    by  Piineipal.  —  In 

most  instances  where  notice  is  necessary  to  fix  the  liability  of 
a  party,  or  where  such  liability  may  be  altered,  modified,  or 
discharged,  by  notice,  such  notice  may  be  communicated  by 
an  agent,  with  the  same  eft'ect  as  when  given  by  the  principaL 
In  order  to  determine  the  validity  of  a  notice  given  by  an 
agent,  it  is  often  an  important  matter  of  inquiry  whether  the 
giving  of  the  notice  is  within  the  scope  of  the  agent's  powers. 
The  same  principles  that  govern  the  giving  of  notice  to  an 
agent  so  as  to  bind  his  principaP  will  not  always  apply  to  the 
notice  given  hy  an  agent  so  as  to  bind  the  part}'  notified.  For 
the  purpose  of  affecting  a  purchaser  with  notice  of  any  defect 
of  title  or  secret  equity  with  respect  to  the  thing  purchased,  it 
is  not  always  necessary  to  estal)lish  the  relation  of  principal 
and   airent   l.»etween   his    informant   and    the  vendor.     It  is  in 


'  Iloyl  0.  Jcllers,  30  .Midi.,    IHl. 
^  AnU  II.,  Notice  to  an  A.geut. 


320  TRINCirAL    AND    AOENT. 

most  cases  sufficient  to  prove  that  tlie  information  was  com- 
municated by  some  one  whose  situation,  or  relations  to  the 
parties,  were  such  as  to  render  it  incumbent  upon  the  pur- 
chaser to  heed  the  warning.^  IS^evertheless,  one  contemplating 
a  purchase  may  disregard  mere  idle  and  vague  rumors  respect- 
ing the  property,  which  have  no  authoritative  foundation 
whatev  er. 

§  697.  Notice  of  Dishonor  of  Commercial  Paper.  —  For  reasons 
peculiar  to  the  law  governing  negotiable  instruments,  and 
which  are  entii'ely  disconnected  with  the  law  of  agency,  notice 
of  the  dishonor  of  a  note  or  bill,  when  given  by  any  one  of 
the  parties  to  such  instrument  who  had  become  liable  thereon, 
may  be  taken  advantage  of  by  the  others."  It  seems,  also, 
that  notice  of  dishonor  may  be  given  by  any  party  to  a  bill,' 
without  regard  to  his  own  liability.  But  M'here  such  notice 
is  permitted  to  be  given  effectually,  by  one  not  contingently 
liable  as  indorser  or  drawer,  the  notice  is  supported  upon  the 
ground  that  the  party  giving  it  acted  as  the  agent  of  the  party 
whose  duty  it  was  to  give  notice.^  It  is  quite  certain,  however, 
that  an  agent  in  whose  hands  the  paper  has  been  placed  for 
presentation  may  give  notice  of  its  dislionor,  either  in  his  own 
name,  or  as  agent  of  the  real  holder.^ 

§  (i9S.  Notice  to  Qnit.  —  But  when  an  estate  or  right  is  to  be 
determined  or  affected  by  notice  to  the  party  in  whom  the 
same  is  vested,  whether  such  notice  be  stipulated  for  by  con- 
tract or  be  required  b}^  law,  it  must  come  from  the  party  who 
by  law,  or  the  terms  of  the  contract,  is  clothed  with  the  power 
of  terminating  the  estate,  or  affecting  the  right  in  this  manner, 

^Ante  §^28,29 

"Chapman  r.  Keane,  3  Ad.  &  Ell.,  lf)8;  Jameson  t.  Swinton,  2  Camp., 
373;  Batchelor  v.  Priest,  12  Pick.,  496.    See  §  703,  Cli.  VI. 

'3  Kent  Com.,  108. 

*  2  Daniel  on  Negot.  Inst.,  ?i  991 ;  Mt.  Pleasant  Bk.  v.  jMcLeran,  26  la.,  306; 
Olasgow  V.  Pratte.  8  Mo.,  336. 

'  Bank  of  State  of  Mo.  v.  Vaughan,  36  Mo.,  90 ;  Fulton  c  McCracken,  18 
Md.,  528;  Burke  c.  McKay.  2  How.,  66:  Woodthorpe  v.  Lawes,  2  M.  & 
W.,  109.     Sec  §  714,  et  sec^.' 


NOTICE    BY    AN    AGENT.  321 

or  from  his  duly  authorized  agent}  Of  this  character  are 
notices  to  quit,  from  landlord  to  tenant.  The  reasons  why  the 
tenant  could  not  safely  respond  to  a  notice  to  quit  from  an 
unauthorized  person  are  so  plain  as  not  to  require  explanation. 
He  is  entitled  to  such  notice  as  he  may  act  upon  with  the 
assurance  that  the  landlord  desires  to  terminate  the  tenancy, 
and  this  can  only  be  by  a  notice  coming  from  some  one  with 
authority  from  the  landlord  himself.^  Although  it  has  Ijeeu 
held  unnecessary,  where  such  notice  was  given  by  an  agent  of 
the  landlord,  that  the  tenant  should  have  evidence  satisfactory' 
to  himself,  that  the  one  assuming  to  act  as  agent,  was  author- 
ized to  give  the  notice.^ 

§699.  Written  or  Verbal. — As  to  the  manner  of  giving 
notice  t©  quit,  this  will  be  more  fully  treated  in  another  chap- 
ter;'* but  where  written  notice  not  required  when  given  by  the 
landlord  in  person,  verbal  notice  will  be  equally  good  from 
the  agent.' 

§  700.  Effect  of  Subsequent  Ratification.  —  There  does  not  seem 
to  be  entire  harmon}^  between  the  authorities,  as  to  the  cura- 
tive effect  of  ratification  upon  notice  given  by  one  falsely 
assuming  to  act  as  agent  of  the  landlord.  As  a  general  rule 
subsequent  ratification,  as  we  have  seen,  when  made  with 
knowledge  of  all  the  circumstances,  will  render  binding  upon 
the  principal  either  the  acts  of  an  unauthorized  agent  or  the 
unauthorized  acts  of  an  agent.^  The  same  principle  will  apply 
to  the  acts  of  an  agent,  in  giving  notice  to  quit  so  far  as  it  is 
calculated  to  bind  the  landlord  who  ratifies  it;  but  whether 
such  subsequent  ratification  should  render  the  notice  retro- 
active, so  as  to  bind  the  tenant,  raises  quite  a  different  question. 
In  some  of  the  cases,  however,  it  seems  to  be  held  that  even  a 


'  Goodtille  v.  Woodward,  3  B.  &  Aid.,  689. 
'Right  V.  Cuthell,  5  East,  491. 

'  Roe  V.   fierce,  2  Camp.,  96 ;  Brahn  t.  Jersey  City  Forge  Co.,  38  N. 
.  L.,  74. 

^^TifeChup.  IV.,  Pt.  III. 
■■'Roe  V.  Pierce,  2  Camji.,  90. 
*Ante  gg  667,  668. 
21 


'■fZZ  I'RINCIPAl,    AND    ACCENT. 

suit  founded  upon  such  notice  will  be  sufficient  ratification  to 
render  the  notice  good  though  given  by  one  who  acted  without 
authority.'  But  both  the  weight  of  authority  and  the  better 
reason  are  the  other  way.  In  the  case  of  Right  v.  Cuthell,"^ 
where  the  power  of  determining  a  lease  by  notice  was  in  tliree 
persons,  to  be  exercised  jointly,  only  two  of  whom  signed  the 
notice,  it  w'as  decided  not  to  be  good,  and  being  a  notice  which 
the  tenant  was  to  act  upon  at  the  time,  a  subsequent  ratifica- 
tion by  the  other  person  would  not  render  it  valid  by  relation. 
The  notice  was  held  bad  for  uncertainty,  as  the  tenant  would 
not  know  whether  to  quit  or  not  until  after  the  ratification. 

§  701.  Notice  Unauthorized  when  Given,  Valid  only  from  Time  of 
Ratification.  —  This  principle  would  apply  with  still  greater 
force  where  the  landlord  is  required  to  give  notice  for 'a  stated 
number  of  days.  In  such  case  the  prescribed  time  should 
elapse,  not  only  subsequent  to  the  giving  of  the  notice  and 
the  ratification,  but  also  between  notice  of  such  ratification 
and  the  time  fixed  for  quitting.  Where  the  notice  is  unauthor- 
ized when  given,  it  can  only  be  considered  valid  from  the 
time  it  is  ratified  by  the  principal.^  And  though  in  a  recent 
American  case  it  was  held  not  to  be  necessary  that  the  agent 
should  have  express  authority,  in  order  to  bind  the  tenant  by 
notice,  yet  such  anthoritj^  should  be  at  least  inferred  from  the 
concurrence  of  the  principal;  and  if  the  giving  of  the  notice 
was  an  unauthorized  act,  a  subsequent  assent  on  the  part  of 
the  landlord  would  not  operate  by  relation  to  render  it  good.'* 

'Goodtitlc  V.  Woodward,  3  B.  &  Aid.,  689;  Roe  o.  Pierce,  2  Camp.,  96. 
'5  East,  491. 

»DoeB.  Walters,  10   Barn.  &  Cres.,  636;  Doe  o.  Goldwin,  2  Ad.  &E11.,  143 
*Brahn  v.  Jersey  City  Forge  Co.,  38  N.  J.  L.,  74. 


Br    WHOM   GIVEN.  323 


CHAPTER  VI. 

Notice  of  Dishonoe  of  Commercial  Paper. 

I.  By  Whom  Given. 
II.  To  Whom  Given. 

III.  Time  op  Giving  Notice. 

IV.  Manner  and  Mode. 
V.  Waiver  and  Excuse. 

1.  By  whom  Notice  may  be  Given. 

§  702.  Generally  it  must  be  by  Holder. 
T03.  By  any  Party  to  the  Instrument. 

704.  Criticism  of  Authorities  by  Judge  Story. 

705.  Party  Discharged  Becomes  a  Stranger. 

70G.  Party  not  Notitied  not  Immediately  Discharged. 

707.  Doctrine  Declared  by  Chitty. 

708.  Notice  given  by  Party  before  Received. 

709.  General  Acceptance  of  the  above  Doctrine. 

710.  Notice  by  Acceptor. 

711.  By  Acceptor  Supra  Protest. 

712.  By  Drawee  of  Bill. 

713.  By  Maker  of  Note. 

714.  By  an  Agent. 

715.  By  Agent  for  Collection,  or  by  Notary. 

716.  Holder  to  give  Notice  need  not  be  Owner. 

717.  By  Successive  Agents  to  each  Other. 

718.  Signing  Wrong  Name  will  not  Affect  Notice  from  Proper  Party 

719.  Otherwise  where  Attorney  has  no  Authority  by  Party  whose  Name 

is  Used. 

720.  Authority  to  give  Notice  Implied. 

721.  Holder  as  Security  may  give  Notice. 

732.  Notice  from  Stranger  Adopted  by  Hcjlder. 

723.  Party  giving  Notice  may  have  no  Knowledge  at  Time. 

724.  Notice  by  PLxeculor. 

725.  By  Assignee  in  Bankni[>tcy. 

726.  When  l)y  the  Bankrupt. 

727.  By  Guai'dian  or  Ward. 

728.  By  Marriid  Woman. 


324  NOTICE    OF    DISiroNOK    OF    COMMERCIAL    PAPER. 

§702.  Generally  it  Must  be  by  Holder.  —  In  general,  the  notice 
of  dishonor  of  negotiable  paper  comes,  in  the  first  instance, 
from  the  holder  at  the  time  of  demand  and  refusal  of  pay- 
ment, or  presentment  for  acceptance,  and  refusal,  by  the 
drawee  to  accept.^  It  has,  indeed,  been  laid  down  as  a  rule, 
that  in  order  to  bind  antecedent  parties,  the  notice  should,  in 
every  instance,  come  from  the  holder  iu  whose  hands  the 
instrument  was  dishonored.^  The  doctrine  announced  in  this 
case  was  approved  by  Lord  Eldon  in  the  subsequent  case  of 
ex  'parte  Barclay.^  The  reasons  given  for  thus  deciding  the 
latter  case  were,  substantially,  that  the  holder  was  the  only 
one  who  could  rely  upon  the  others  for  payment,  and,  con- 
sequently, notice  from  one  who  was  not  in  a  position  to  avail 
himself  of  the  liability  of  an  antecedent  party,  could  not 
authoritatively  advise  the  party  notified  that  he  was  held  to  the 
terms  of  his  contract.  In  other  words,  if  A  were  the  holder 
of  a  bill,  acceptance  of  which  was  refused,  and  B  was  his 
immediate  indorser,  in  case  notice  of  the  dishonor  was  given 
by  B  to  the  drawer,  A  could  not  avail  himself  of  such  notice 
in  order  to  hold  the  drawer,  because  B  would  have  no  author- 
ity to  say  to  the   drawer  that  A  relied  upon  him  for  payment. 

§  703.  By  any  Party  to  the  Instrument.  —  But  directly  in  con- 
flict with  the  authorities  cited  above,  are  the  cases  of  Jameson 
V.  Swinton,"*  and  Wilson  v.  Swabey,^  in  l)oth  of  which  the 
doctrine  is  laid  down,  that  notice  coming  from  any  antecedent 
party  to  the  instrument,  will  enable  the  holder  or  subsequent 
indorser  to  hold  the  party  notified  either  as  drawer,  or  upon 
his  contract  of  indorsement.  Upon  the  authoritj^  of  the  cases 
last  cited,  Lord  Denman  took  occasion  to  review  Tindal  v. 
Brown,®  and  expressly  overruled  the  case,  declaring  the  doctrine 

'Walker  «.  Bank  of  the  Slate,  8  Mo.,  704;  Gindrat  v.  Mechanics'  Bank, 
7  Ala .  324. 

'  Tindal  «.  Brown,  1  T.  R.,  164. 
2  7  Ves.,  597. 
*  2  Camp.,  373. 
'  1  Stark.,  34. 
'  Supra. 


BY    WHOM    OIVEN.  '    ■^'2i> 

therein  promulgated  not  to  be  good  law.^  In  this  case  the 
plaintiff  had  indorsed  a  bill  upon  which  defendant  was  ante- 
cedently liable,  and  the  indorsee  of  plaintiif  was  the  holder 
of  the  bill  when  it  reached  maturity.  The  holder  left  the  bill 
in  the  hands  of  plaintiff's  clerk  with  instructions  to  present  the 
same,  and  in  case  of  non-payment  to  give  notice  of  dishonor. 
The  bill  was  duly  presented,  payment  refused,  and  the  clerk, 
instead  of  giving  notice  to  the  plaintiff  and  to  the  defendant, 
in  the  name  of  the  holder^  by  whom  he  was  authorized  to  act, 
simply  gave  notice  to  defendant^  in  the  name  of  \\\& plaintiff 
— the  last  indorser.  Plaintifi"  subsequently  took  up  the  bill, 
and  in  the  action  brought,  it  was  held,  in  opposition  to  the 
rule  announced  in  the  overruled  case,  that  the  notice  was  suffi- 
cient, notwithstanding  it  was  not  from  the  holder  at  the  time 
such  notice  was  given. 

§  704.  Criticism  of  Aiithoi-ities  bj-  Judge  Story.  —  Mr.  Bay  ley 
in  his  Work  on  Bills,'^  attempts  to  limit  the  application  of  the 
above  doctrine  to  cases  wliere  the  y)arty  from  whom  the  notice 
comes  is  himself  bound  to  pay  the  bill  or  note.  Judge  Story 
cites  Mr.  Bayley  with  approval,  and  objects  to  the  breadth  of 
statement  employed  in  most  of  the  cases,  as  intimating  that 
notice  by  parties  would  be  sufficient,  regardless  of  the  fact  that 
they  might  not  themselves  be  liable  to  pay  the  same,  or  be 
entitled  to  reimbursement.^  Says  the  learned  author  in  this 
connection — "Suppose,  for  example,  a  second  indorser  should 
give  notice  to  a  first  or  third  indorser,  having  received  none 
himself,  and  therefore  not  being  bound  to  pay  the  note,  and 
the  holder  has  not  given  any  notice  whatsoever  to  any  of  the 
indorsers,  the  question  in  such  a  case  would  arise,  whether  the 
notice  was  available  in  favor  of  the  holder.  Suppose  the  last 
indorser  has  received  no  notice  from  the  holder,  and  is  there- 
fore discharged,  would  notice  by  him  to  the  prior  indorsers  be 
available  for  the  holder 'f 


'  Chapman  «.  Keane,  3  Ad.  &  EH.,  10:1. 

»  Bayley  on  Bills,  248. 

» Story  on  Prom.  Notes,  g  30;{— Citing  Bayley  on  B.,  (5tli  Ed.),  254. 


820  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

§  705.  Piii'ty  Discharged  becomes  a  Stranger.  —  It  is  conceded 
on  all  sides,  that  the  notice  must  emanate  from  a  party  to  the 
bill,  and'  many  of  the  earlier  authorities,  both  English  and 
American,  hold  that  it  must  come  from  a  party  who  can  give 
the  drawer  or  indorser  his  immediate  remedy  on  the  bill ; 
otherwise  it  is  merely  a  historical  fact.^  But  the  rule  that 
notice  must  come  from  a  party  to  the  bill  is  only  confused  by 
insistance  upon  the  doctrine  that  notice  cannot  be  effectually 
given  to  a  23rior  indorser,  by  a  subsequent  indorser  who  bus 
been  discharged.  For  when  an  indorser  has  been  discharged 
from  liability  on  the  bill  or  note,  by  failure  to  give  him  the 
requisite  notice,  he  ceases  to  be  a  party,  and  becomes  a  stran- 
ger to  the  instrument.^ 

§  706.  Party  not  Notified  not  Immediately  Discharged.  —  Xever- 
theless,  the  indorser  who  has  not  been  notified  of  the  dishonor 
of  the  paper  upon  which  he  is  liable,  is  not,  ij^so  facto,  dis- 
charged, as  appears  to  be  assumed  in  the  supposititious  case 
stated  by  Judge  Stoi-y.^  He  must  not  only,  in  order  to  be 
discharged,  not  have  received  notice  of  the  dishonor,  but  the 
time  must  have  elapsed  within  wliich  he  could  hav^e  been 
legally  notified.  Until  then  his  contingent  liability  continues, 
and,  according  to  the  rule  laid  down  by  Lord  Denman,'*  as  well 
as  numerous  English  and  American  decisions  made  in  pursu- 
ance thereof,  he  may  give  notice  to  all  prior  parties,  and  bind 
them  as  eftectually  as  though  he  had  been  the  holder  at  the 
time  of  dishonor,  or  had  l»een  duly  notified  ])revious  to  his 
giving  notice  to  prior  parties.^ 

§  707.  Doctrine  Declared  by  Chitty.  —  In  bis  valuable  work  on 
Bills  of  Exchange,   Mr.  Chitty  deduces  from  the  authorities, 

1  Lord  Ellenborough,  in  Stewart  v.  KeniKitt,  2  Camp.,  177 ;  Hopes  v.  Alder 
6  East,  16;  Stanto  «.  Blossom,  14  Mass.,  116. 

-  2  Daniel  on  Negot.  Inst.,  42. 

^  Supra,  %  704. 

"  ("hapman  v.  Keauo,  Supra 

"Riddle  u  Maudeville,  5  Cniuch,  :322;  Crocker  «.  Getcholl,  28  Me.,  .S92; 
Stafl'ord  v.  Yates,  18  Johns..  827;  Glasgow  v.  Pi-atto,  8  :Mo.,  280;  Glasscock  t>. 
B'k  of  Mo.,  M,  443;  Batchellor  v.  Priest,  12  Pick.,  899. 


BV    WHOM    GIVEN.  327 

tlie  rule  that  tlie  notice  will  be  by  the  proper  person,  if  given 
.  bj  any  person  who  is  a  party  to  the  bill,  and  who  would  be 
entitled  to  re-imbursement  after  paying  the  same;  and  the 
object  of  the  notice  being  to  enable  the  parties  to  have  recourse 
to  the  maker,  acceptor  or  drawer,  it  makes  no  diffei-ence  from 
which  one  of  the  parties  the  notice  is  received,  it  will  inure  to 
the  benefit  of  all  antecedent  parties,  and  render  any  further 
notice  from  them  unnecessary.^  The  same  view  is  taken  by 
Mr.  Thompson,"'^  by  whom  it  is  regarded  as  settled  that  notice 
from  any  party  to  the  bill  will  be  sufficient,  if  it  conforms,  in 
other  respects,  to  the  requirements  of  the  law,  and  when  given 
by  the  last  indorser,  to  the  first,  or  to  the  drawer,  will  inure 
to  the  benefit  of  all  intermediate  parties.^ 

§  708.  Notice  given  by  Party  before  Received.  —  Where  an 
jndorser  notifies  prior  parties,  before  he  has  himself  received 
formal  notice,  the  later  authorities  seem  to  regard  his  action 
as  a  virtual  waiver  of  formal  notice,  or  an  acknowledgment  of 
his  own  liability,  and  consequently  should  the  notice  never 
afterwards  be  given  him,  this  will  not  affect  the  liability  of 
any  prior  party  to  whom  he  gave  notice  before  the  expira- 
tion of  the  time  within  which  he  should  have  been  notified 
of  the  dishonor.  The  notice  being  from  a  proper  party,  fixes 
the  liability  of  the  party  to  whom  it  is  given,  and  he  can  only 
be  released  by  the  voluntary  act  of  each  of  the  parties  to 
whom  he  is  liable.  It  will  not  be  contended,  however,  that 
any  partj^  to  negotiable  paper,  who  has  been  discharged  for 
the  want  of  notice  can,  by  subsequent  waiver,  reassume  his 
liability  on  the  instrument,  so  as  to  affect  antecedent  parties 
with  notice  which  he  gives  after  his  own  discharge.* 

§  709.  General  Acceptance  of  the  above  Doctrine.  —  Notwith- 
standing the  modifications,  bv  which  some  of  the  earlier 
English  and  American  authorities  have  sought  to  restrict  the 
application  of  the  doctrine,  that. any  party  to  a  note  or  bill 

'  Chitty  on  Bills,  237. 

5  Thompson  on  Bills,  Sec.  IV.,  p.  4!)0. 

°S('»-,  also,  2  Dituiel  on  Negol.  Inst.,  44. 

*Sec  Post.     Time  within  which  notice  must  lie  given. 


328  NOTICK    OF    DISHONOK    OF    COMMERniAL    PAVEK. 

may  give  the  iiotice  by  which  an  antecedent  party  may  be 
held  liable  to  subsequent  parties,  the  English  cases  by  which 
the  doctrine  was  first  laid  down,  have  been  folloM'cd  in  both 
countries,  until  it  has  become  quite  firmly  established.^ 

§  710.  Notice  by  Acceptor.  —  Following  these  authorities,  it 
has  been  decided  that  where  a  bill  of  exchange  was  dishonored 
when  presented  for  payment,  notice  of  such  dishonor,  given 
by  the  acceptor,  would  bind  the  prior  parties  to  whom  the 
same  was  given,  as  efi'ectually  as  though  it  had  come  from  the 
holder,  or  a  subsequent  indorser,  although,  in  the  same  case, 
the  principle  was  full}'  recognized  that  notice  from  a  mere 
stranger  would  not  be  suflicient.^ 

§  711.  By  Acceptor  Supra  Protest.  —  So,  in  the  case  of  Union 
Bank  v.  Grirashaw,'^  where  the  acceptor,  on  the  day  the  bills 
matured,  addressed  a  letter  to  the  drawer,  informing  him  that 
they  must  go  back  protested,  this  was  held  sufficient  notice  to 
bind  the  di-awer,  and  would  inure  to  the  benefit  of  any  subse- 
quent party  who  sought  to  avail  himself  of  it.  So,  also,  in 
the  case  of  Konig  v.  Bayard,*  Chief  Justice  Marshall  recog- 
nized the  validity  of  notice  from   an  acceptor,  snjyra  protest. 

§  712.  By  Drawee  of  Bill.  —  Upon  the  same  principle  as  the 
foregoing,  it  was  held,  in  Mt.  Pleasant  Bank  v.  McLeran,Hhat 
where  the  bill  was  not  accepted,  notice  from  the  drawee  would 
be  as  efiectual  as  from  a  party  liable  to  pay  the  same,  and  enti- 
tled to  reimbursement  from  the  prior  party  notified.  This 
case,  however,  involved  the  further  question  of  agency  in  the 
party  giving  the  notice,  though  such  notice  might  well  have 
been  held  good  without  it  a]q)earing  that  the  drawee,  from 
whom  it  came,  acted  as  the  agent  of  the  holder,  for  whose 
benefit  such  notice  was  ofiven. 

'  Sue  cases  citul  Infra;  Butler  v.  Duval,  4  Yerg-.,  205;  Bank  of  U.  S.  t». 
Goildarrt,  5  Mason,  ;^66. 
•^  Brailsford  v.  Williams,  15  Md.,  150;  Kosher  d.  Kierau,  4  Canij).,  87. 
^  15  La.,  321. 
*  1  Pet.,  250. 
» 20  Iowa,  306. 


BY    WHOM    GIVEN.  329 

■^  713.  By  3Iakei-  of  Note.  — It  was  also  decided,  in  tlie  case 
of  Glasgow  V.  Pratte,^  which  is  cited  with  evident  approval  in 
First  National  Bank  v.  Kyerson,^  that  where  a  negotiable 
promissory  note  was  dishonored,  the  maker  could  give  notice 
thereof  so  as  to  bind  jy^or  indorsers,  and  render  them  liable  to 
subsequent  parties  to  the  instrument. 

§714.  By  an  Agent.  —  A  notice  given  by  the  agent  of  any 
party  to  the  bill  or  note  will  be  as  effectual  as  if  given  by  the 
party  himself.^  And  sncli  agent  need  not  have  been  empow- 
ered expressly  for  the  purpose  of  giving  such  notice.  Where 
the  instrument  has  been  intrusted  to  a  banking  institution  for 
collection,  the  notice  of  dishonor  may  be  given  by  the  bank, 
or  any  of  its  officers.^  And  this  principle  has  been  carried  to 
the  extent  of  imposing  the  giving  of  notice  of  dishonor  upon 
such  banks,  as  a  duty  implied  fi-oni  the  nature  of  the  under- 
taking on  their  part,  to  collect.  For  non-feasance  in  this  par- 
ticular, the  holder  has  been  held  entitled  to  maintain  assump- 
sit ajjainst  the  bank.^ 

§  715.  By  Agent  for  Collection,  or  by  Notary.  —  Any  agent 
authorized  to  demand  payment  may  give  the  notice,  whether 
such  agent  be  authorized  and  empowered  thereto  by  written 
letter  of  attorney  or  by  verbal  appointment."  The  notary  in 
whose  hands  the  instrument  has  been  placed  for  presentment 
or  demand,  and  with  authority  to  formally  protest  the  same  in 
case  of  dishonor,  is  such  a  holder  of  the  paper  as  may  give  the 
notice,  whether  the  instrument  is  one  requiring  formal  protest 
or  not.'' 

'  8  Mo.,  336. 

'•'  23  la.,  508. 

' Coppeitliw'iiite  i).  Slieffield,  1  Sanf.,  416;  Huzlett  v.  Poultney,  1  Nott  & 
M.,  466;  Tunno  v.  Lagiie,  2  Johns.  Cast; Bank  of  Cape  Fear  v.  Seawell,  2 
Hawks  (N.  C),  560;  Mead  v.  Eng.s,  5  Cow.,  303;  Payne  v.  Patrick,  21  Tex., 
680;  Greene  v.  Farley,  20  Ala.,  322;  Bank  of  State  v.  Vanglian,  36  Mo.,  90. 

♦Freeman's  Bank  v.  Perkins,  18  Me.,  292;  Worden  v.  :Nourse,  36  Vt.,  756. 

'  Sniedps  ».  Utica  Bank,  20  Johns.,  372. 

"Sussex  Bank  v.  Baldwin,  17  N.  J.  L.,  4H7. 

'Bank  of  Utica  «.  Smith,  18  Johns.,  230;  Fulton  v.  Maccracken,  18  Md., 
528;  Rennick  v.  Robhins,  28  Mo.,  339;  Burke  v.  McKay,  2  How.  (U.  S.),  66; 
Church  0.  Barlow,  9  Pick.,  547;   Howard  v.  Ives,  1  Mill,  263. 


o'SO  NOTirK  OF  DISHONOR  OF  commf:ij(ial  paper. 

^  71*^  Holder,  to  (liive  Notice,  Need  not  lie  Owner.  —  Even  wliere 
it  is  required  that  the  notice  shall  come  from  the  liolder,  it  is 
not  necessarj'  that  he  shall  he  the  owner  of  the  paper  dishon- 
ored. Where  he  is  merely  a  holder  for  collection,  as  we  have 
seen,  he  may  not  onl}' give  notice  to  antecedent  parties,  hut  it 
hecomes  his  duty  to  do  so,  and  the  same  degree  of  diligence  is 
demanded  of  him  as  though  he  were  a  holder  for  value. ^  And 
it  is  equally  incumbent  upon  such  agent  to  give  due  and  timely 
notice  to  his  principal  of  the  default  of  payment  or  failure  to 
accept,  .as  it  would  be  upon  one  holder  for  value  to  give 
notice  to  another.  The  agent  or  holder  for  collection  has  the 
same  time  within  which  to  give  notice  to  the  real  holder,  as 
to  any  other  party  antecedently  liable.^ 

§  717.  By  Successive  Agents,  to  Each  Other.  —  As  the  notice 
may  be  transmitted  from  the  holder,  through  the  several 
indorsers,  in  the  inverse  order  of  their  indorsements,  back  to 
the  drawer,  and  each  of  said  parties  is  entitled  to  the  same 
time,  and  may  employ  the  same  means,  and  give  the  notice  in 
the  same  manner  and  mode  as  it  may  be  given  by  the  holder, 
however  circuitous  such  a  course  of  transmission  may  be,  and 
liowever  much  time  may  be  needlessly  consumed  by  such 
course;^  so,  wliere  the  paper  is  sent  for  collection  to  several 
banks  in  succession,  each  may  give  notice  of  dishonor  to  the 
antecedent  bank  from  which  it  was  received,  and  so  on,  in  like 
manner,  and  with  the  same  effect,  as  they  might  were  they 
holders  for  value.^ 

§  718.  Signing  Wrong  Name  will  not  Affect  Notice  from  Proper 
Party.  —  Mere  error  in  giving  the  name  of  the  principal,  by 
whose  authority  the  agent  acts  in  notifying  the  party,  will  not 

1  BartleU  v.  Ishcll,  31  Coon.,  296. 

'^  Lawson  ».  Farmers'  Bunk,  1  Ohio  St.,  206;  Scott  v.  Liflbrd,  9  East,  347; 
Langdiile  v.  Trimmer,  15  Id.,  2!)1. 

^Triplett  «.Hunt,  3  Dana,  120;  Renshaw  v.  Triplett,  23  Mo.,  213;  Whit- 
man V.  Farmers'  Bank,  8  Porter  (Ala.),  258;  O.i^^den  v.  DoLbin,  2  Hall,  112; 
McNeill  c.  Wyatt,  3  Humph.,  125;  Hill  v.  Planters'  Bank,  Id.,  670;  Eagle 
Bank  v.  Hathaway,  5  Met.,  212. 

*  Clode  V.  Bayley,  12  M.  &  W.,  51. 


BY    WHOM    GIVKN.  331 

vitiate  the  notice.  As,  where  tlie  plaintiff,  who  was  the  actual 
holder  of  the  instrument  when  it  was  dishonored,  gave  direc- 
tions to  liis  attorney  to  notify  defendant,  who  was  a  prior 
indorser,  in  the  name  of  the  last  indorser,  and  the  attorney 
accordingl}'  addressed  a  letter  to  the  defendant,  in  which  he 
used  this  langnage:  "I  am  instructed  by  Mr.  B  (tlie  indorser) 
to  give  you  notice,"  &c.,  signing  the  letter  with  his  own  name, 
the  notice  was  held  good,  as  coming  from  the  real  holder.^ 

§  719.  Otherwise  where  Attorney  has  no  Authority  by  Party 
whose  Name  is  Used.  —  However,  in  Harrison  v.  Rnscoe,^  where 
the  attorney  gave  notice  to  a  prior  indorser,  but  stated  therein, 
by  mistake,  that  he  was  instructed  to  do  so  by  one  from  whom 
he  had  no  authority  whatever,  either  to  demand  payment  or 
to  give  notice,  it  was  held  that,  although  this  mistake  would 
not  vitiate  the  notice  altogether,  it  would,  nevertheless,  have 
the  effect  of  changing  the  status  of  the  party  by  whose  author- 
ity the  notice  was  in  fact  given,  so  that  he  would  occupy  the 
same  position  towards  the  party  notified  as  would  have  been 
occupied  by  the  party  from  whom  the  notice  purported  to 
come,  had  he  authorized  it;  and  any  defense  which  would  have 
been  available  against  such  party,  in  favor  of  the  one  receiving 
the  notice,  would  be  equally  good  against  the  party  at  whose 
instance  the  notice  was  given. 

§720.  Authority  to  Give  Notice  Implied.  —  Where  a  bill  ot 
exchange  is  placed  in  the  hands  of  an  attorney  or  agent,  with 
authority  to  present  the  same  for  acceptance,  the  authority  to 
give  notice  of  a  failure  or  refusal  to  accept  is  implied  from  the 
authority  to  present,  and  it  has  been  held  that  such  notice  may 
be  given  by  the  attorney  or  agent  in  his  own  name.^ 

§  721.  Holder  as  Security  may  Give  Notice.  —  It  is  not  even 
essential  to  the  right  of  a  holder  of  negotiable  paper,  that  he 
Bliould  be  a  holder  for  the  purpose  of  collection  or  present- 
jnent.     One  who  holds  the  instrument  as  collateral  security 

'  Rogerson  v.  Hare,  W.  AY.  &  D.,  65. 
''ISM.  &W.,  231. 

'  WoodUjorpe  v.  Lawes,  2  M.  ct  W.,  109. 


332  NOTICE    OF    DI^HIOXOU    OF    COIVIMEKCIAL    PAPKR, 

for  a  debt,  not  only  may,  but  properly  should,  give  notice  of 
its  dishonor,  so  as  to  preserve  the  rights  of  his  debtor,  against 
antecedent  parties.' 

§  722.  Notice  from  Stranger  adopted  by  Holder. —  The  rule  that 
notice  from  a  mere  stranger  to  the  instrument  will  not  be 
binding  upon  the  parties  to  whom  it  is  given,  is  considerably 
weakened  by  the  liberal  manner  in  which  the  courts  seem 
inclined  to  construe  the  authority  of  agents  by  whom  notice  of 
dishonor  is  frequently  given.  It  has  been  held,  even  where 
the  person  giving  the  notice  was  a  total  stranger  to  the  bill, 
but  who  represented  that  he  was  the  real  holder,  that  such 
notice  was  rendered  valid  and  binding  upon  the  parties  to 
whom  the  same  was  given,  by  the  real  holder's  subsequent  rat- 
ification of  the  acts  of  the  pretended  holder.''^  A  case  can 
hardly  be  imagined  where  the  circumstances  attending  the  act 
of  intermeddling  by  the  self-styled  holder,  or  a  pretended 
agent,  would  be  resented  by  the  refusal  of  the  party  so  sig- 
nally benefited,  to  adopt  the  act  whicli  was  necessary  to  save 
him  from  pecuniary  loss. 

§723.  Party  (Tivin^  Notice  may  have  ii(»  Km)wledge  at  Time.  — 
It  is  of  no  consequence,  as  affecting  the  rights  of  the  parties, 
that  the  person  giving  the  notice  has  not,  at  the  time,  either 
knowledge  or  information  of  the  fact  that  the  paper  has  been 
dishonored.  If  the  language  of  the  Tiotice  is  sufficiently  posi- 
tive and  certain,  and  its  statements  are  borne  out  by  subsequent 
develo]>ments,  it  matters  not  hotr  the  person  sending  the 
notice  gained  the  knowledge  imparted  thereby,  nor  even 
whether  he  knew  it  at  all.  This  doctrine  is  fairly  illustrate<l 
by  the  case  of  Jennings  v.  Roberts.^  Here  the  bill  had  been 
indorsed  by  defendant  to  plaintiff,  and  by  the  latter  to  a  coun- 
try bank.  It  was  accepted,  and  ])ayable  in  London.  On  the 
■  day  it  fell  due,  plaintiff  saw  the  manager  of  the  country  bank, 
by  whom  he  was  informed  that   the  bill  would   be  back  from 

'  Peacock  «.  Pmcel,  14  C.  B.  N.  S.,  728. 
-LysaKht  v.  Bryant,  2  Carr.  &  Kir.,  1016. 
«29Eng.  L.  .t  Eq.,  118. 


BY  WHOM  givp:n.  333 

London  in  tlie  morning.  On  the  same  day,  this  information 
was  communicated  by  plaintiff  to  defendant,  with  a  demand 
for  the  money  to  meet  it.  Subsequently  it  transpired  that  the 
manager  did  not  know,  at  the  time  of  giving  the  information, 
that  the  bill  had  been  dishonored;  but  such  proving  to  l)e  the 
case,  and  the  bill  being  returned  on  the  following  day,  it  was 
held  that  his  want  of  knowledge  did  not  vitiate  the  notice,  so 
long  as  the  fact  coramimicated  proved  true. 

§  724.  Notice  by  Executor.  —  In  case  of  the  death  of  the  holder, 
or  other  party  from  whom  the  notice  should  emanate,  it  should 
be  given  by  his  executor  or  administrator  within  a  reasonable 
time  after  appointment,  in  case  of  the  latter.^  But  where  one 
of  several  joint  owners,  dies,  the  notice  should  be  given  b}^  a 
survivor  or  his  agent.'' 

§  725.  By  Assignee  in  Bankruptcy.  —  Where  the  holder  has 
been  declared  bankrupt,  the  notice  should  primarily  be  given 
by  the  assignee.  If  it  falls  due  subsequent  to  the  assignment, 
the  assignee  will  be  governed  by  the  same  rules  as  to  time,  as 
parties  holding  in  their  own  right;  but  if  it  is  dishonored 
before  it  comes  to  his  hands,  he  would  probably  be  allowed  a 
reasonable  time  after  the  assignment,  within  which  to  give 
notice. 

§  726.  When  by  the  Bankrupt.  —  As  the  bankrupt  holder 
stands  in  privitj^  with  the  assignee,  has  an  interest  in  the 
note  or  bill,  and  represents  the  interests  of  his  own  estate 
until  the  selection  or  appointment  of  an  asiig  ee,  notice  from 
the  bankrupt,  prior  to  such  appointment,  and,  probably  prior 
to  the  assignment,  would  be  valid.* 

§  727.  By  Guardian  or  Ward.  —  If  the  holder  be  an  infant,  or 
other  person  under  guardianship,  notice  from  either  guardian 
or  ward  would  be  sufficient. 

§  728.  By  Married  Woman.  —  Where  the  holder  is  a  feme  sole 
at   the    inception   of  the  instrument,  but  nuxri'ies   before    its 

'  White  «.  Slodflard,  11  'Gray,  258;  Stoy  on  Prom.  Notes,  §304. 
'Evans  v.  Evans,  9  Paij^e,  178. 
*  Story  on  Prf )m .  Notes,  §  .'505. 


ooi  NOTICE    OF    DISHONOR    OF    COMMKKOIAL    PAl'EK. 

maturity,  notice  of  dishonor  should  be  given  by  her  husband, 
or  by  her,  with  his  consent,  express  or  implied;  but  notice 
sent  by  her  would  probably  be  available  without  direct  proof  of 
consent  on  the  part  of  the  husband,  even  where  the  common 
law  disabilities  of  married  women,  still  prevail.^  And  where 
the  note  is  given  to  a  ferae  covert^  the  rule  will  probably  be 
the  same  in  regard  to  notice.^ 


II.  To  WHOM  Given. 

§  729.  To  Drawers  and  Indorsers— Reason  for  Rule. 

730.  Drawer  of  Bill. 

731.  Should  not  be  Waived  by  Agent. 

732.  When  not  Entitled  to  Notice. 

7^3.  Drawn  upon  Partnership  by  Member  of  Firm. 
784.  Indorser. 

735.  Need  not  be  ludor-ser  for  Value. 

736.  May  be  from  any  Subsequent  Party. 

737.  Notice  of  Partial  Dishonor. 

738.  Indorsers  of  Over-due  Paper, 

739.  Illustration  of  Above. 

740.  Paper  Re-issued  by  Indorser. 

741.  Purchase  at  Indorser's  Request — Notice  Unnecessary. 

742.  Transferrer  by  Deiiverj^  not  Entitled  to  Notice. 

743.  Notice  to  Agent. 

744.  Example  of  Authority  to  Receive  Notice. 

745.  Authority  may  be  Implied. 

746.  Question  of  Fact. 

747.  Agent  with  General  Authority. 

748.  Appointed  Prior  to  the  War. 

749.  Example  where  Authority  not  Implied. 

750.  Not  Implied  from  Authority  to  Indorse. 

751.  Notice  to  Partners. 

752.  Indorsement  During  Partnership. 

'  Btirrough  v.  Moss  ,  10  P,.  ^  C.  558;  McNeilage  v.  Halloway,  IB. &  Aid., 
218;  Chltty  on  Bills,  23,  24.  26. 

'  Phllliskirk  ».  Plu;;kwell,  2  M.  &  S.,  393. 


TO    WHOM    GIVEN.  335 

753.  After  Dissolution. 

754.  To  Agent  of  one  of  the  Partners. 

755.  To  Surviving  Partner. 

756.  Exception  as  to  Partners — Manner  of  Service. 

757.  Joint  Endorsers,  not  Parties. 

758.  Agency  not  Implied  from  .Joint  Indorsement. 

759.  Consequences  of  Failure  to  Notify  both  .Joint  Indorsers. 

760.  Assumption  of  Authority  by  One,  for  All,  Binds  Him. 

761.  Circumstances  Admitting  Notice  to  Joint  Indorsers. 
763.  Joint  Administrators  Cannot  tie  their  Hands. 

763.  Notice  to  Personal  Representatives. 

764.  How  Notified  by  Letter. 

765.  Sufflcieut  when  Addressed  to  Deceased  Indorser. 

766.  Left  at  last  Dwelling  Place  of  Deceased. 

767.  Addressed  to  Indorser  Known  to  be  Dead. 

768.  To  one  of  Several  Personal  Representatives. 

769.  To  Assignee  in  Bankruptcy,  or  to  Bankrupt. 

770.  Before  Selection  of  Assignee. 

771.  Bankruptcy  of  Acceptor  no  Excuse. 

772.  Might  be  to  Bankrupt  after  Assignment. 

773.  To  Infant  Parly. 

774.  Married  Woman. 

775.  Drawer  or  Indorser  Insane. 

§  729.  To  Di-aweis  and  Indorser.'^ — Reason  for  the  Rule.  —  The 
parties  who  are  entitled  to  notice  of  the  dishonor  of  a  bill  or 
note  may  he  classed  under  the  general  description  of  all  those 
'ivho  have  hecome  liable  thereon^  either  as  dravjers  or  indors- 
ei's.  One  of  the  reasons  why  they  are  entitled  to  such  notice, 
is  that  it  is  implied  as  a  condition  of  their  undertaking.  The 
other  is,  that  upon  paying  and  taking  up  the  dishonored  instru- 
ment, they  will  be  entitled  to  reimbursement  at  the  hands  of 
those  antecedently  liable.  The  right  which  the  drawer  or 
indorser  has,  when  there  has  been  a  default  of  pa\'ment  by  tlie 
drawee  of  a  bill  oi-  the  maker  of  a  note,  to  discharge  his  own 
liability  to  subsequent  parties,  by  payment,  and  resort  to  prior 
parties,  is  one  which  the  law  merchant  guards  by  requiring 
that  he  shall  receive  prompt  notice  of  the  happening  of  the 
event  which  m:iy  change  the  nature  of  his  contingent  liability 
to  that  which  is  certain  and  fixed.  The  most  etH(;acious  method 
of  securing  this  notice  is  that  a(l<)j>t(!d  by  the  law,  ofdisciiarg- 


336  NOTic;:  of  dishonor  of  commkkcial  paper. 

iiig  IVuiu  liability  on  tlie  instnnnent  all  sucli  parties  to  whom 
it  i?  not  given  in  due  time.' 

§  730.  Drawer  of  Bill.  —  Where  a  bill  of  exchange  is  drawn 
in  good  faith,  upon  the  custodian  of  funds  of  the  drawer,  or 
against  a  party  who  has  authorized  the  draft,  or  who  rests 
under  legal  obligation  to  honor  it,  the  drawer  has  not  only  a 
right,  as  against  the  drawee,  to  have  the  same  paid,  but  as  he 
has  undertaken  to  answer  to  any  subsequent  party  that  it  will 
be  so  paid,  and  while  the  bill  is  on  the  market,  he  treats  it  as 
an  adjustinent  pro  tanto  of  accounts  between  the  drawee  and 
himself,  he  has  an  equal  right,  as  against  the  holder  at  matu- 
rity, to  prompt  information,  in  case  payment  is  refused.  And 
what  may  be  said  of  payment  is  equally  true  of  acceptance, 
where  the  bill  is  so  drawn  as  to  require  presentment  for  that 
purpose.' 

§  731.  Should  not  be  Waived  bj'  Agent.  —  The  case  of  Gros- 
venor  v.  Stone,^  illustrates  the  importance  of  a  punctilious 
insistance  upon  this  right.  Plaintiff  drew  a  bill  upon  a  banker 
who  had  authorized  the  draft,  for  the  benefit  of  defendant. 
The  bill  was  accepted  by  the  drawee,  with  funds  in  his  hands 
to  meet  it.  After  acceptance,  and  before  the  maturity  of  the 
bill,  the  acceptor  became  bankrupt,  and  the  bill  was,  through 
mistake,  paid  for  the  honor  of  one  not  a  party  thereto.  There 
was  a  failure  to  give  notice  of  dishonoi-  to  plaintiff,  who  never- 
theless, allowed  judgment  to  go  against  him  by  default,  and 
then  sought  to  hold  defendant,  for  whose  use  the  draft  ^\as 
drawn.  It  was  held  that  the  circumstances  under  which  the 
bill  was  drawn,  entitled  plaintiff  to  notice  of  its  dishonor,  and 
though  he  acted  as  defendant's  agent  in  the  transaction,  he 
should  not  have  waived  his  right  to  notice,  to  the  prejudice  of 
his  principal,  and  hence  could  not  recover. 

§  732.  AVIien  not  Entitled  to  Notice.  —  Where,  however,  the 
drawer  lias  no  good  reason  to  believe  that  the  draft  will  be 

'  See  cases  cited,  Jw/Vv/.. 
'Grosvenor  v.  Stone,  8  Pick.,  79, 
*  Supra. 


TO    WHOM    GIVEN.  361 

lionoi'ed,  as  when  he  knows  there  are  no  funds  in  the  hands  of 
the  drawee,  who  is  under  no  obligation  to  pay,  or  where  he  has 
himself  intercepted  the  funds  remitted  for  that  purpose,^  or 
where  the  maker  has  made  an  assignment  of  all  his  property 
to  the  indorser,^  or  the  indorser  has  otherwise  received  full 
indemnity  from  the  maker  or  acceptor;^  or  the  drawer  knows 
when  he  draws  the  bill,  that  the  drawee  is  bankrupt,  he  is  not 
entitled  to  notice  from  either  holder  or  indorser.'* 

§  733.  Drawn  upon  Partnership  by  Member  of  Firm.  —  It  has 
also  been  held  where  the  bill  was  drawn  upon  a  partnership, 
by  one  of  the  partners,  that  as  each  member  was  presumed  to 
liave  full  knowledge  of  whatever  concerned  the  partnership 
affairs,  and  the  drawer  could  have  no  action  at  law  against  his 
co-partners  upon  the  dishonored  bill,  he  was  not  entitled  to 
notice.^ 

§  734.  Indorser.  —  For  the  same  reasons  that  operate  in  favor 
of  the  drawer  of  a  bill  of  exchange,  an  indorser  of  a  bill  or 
note,  who  has  passed  the  instrument  by  an  unqualified  indorse- 
ment, is  also  entitled  to  notice  of  its  dishonor,  and  upon  failure 
of  notice  is  released  from  liability  to  subsequent  parties.® 

§735.  Need  not  be  Indorser  for  Value. — This  right  exists  in 
favor  of  each  indorser  of  a  negotiable  instrument,  who  has  a 
right  to  resort  to  antecedent  parties,  whether  they  be  indorsers 
for  value,  or  have  merely  received  and  transferred  by  indorse- 
ment the  bill  or  note,  to  a  subsequent  party  for  collection.'' 

§  736.  May  be  from  any  Subsequent  Party.  —  But  this  right 
to  notice  does  not  exist  in  every  instance  in  favor  of  any  party, 

'  Miser  ».  Trovinger,  7  Ohio  St.,  281;  Commercial  Bank  o.  Hughes,  17 
Wend.,  94. 

'Bond  V.  Faruham,  5  Mass.,  170;  Barton  v.  Baker,  1  S.  &  K,  334; 
Mechanics'  Bank  v.  GriswoUl,  7  Wend.,  165. 

'Rhett  V.  Poe,  2  How.  (U.  S.),  457. 

*  Dnrliam  v.  Price,  5  Yerg.,  800. 

^  Fuller  V.  Hooper,  3  Gray,  334;  (Jowan  »i.  Jackson,  30  Johns.,  176. 

Tnfra. 

'McNeill  V.  Wyatt,  8  Humph.,  125;  Scott  v.  Liflbrd,  OEa.st,  347;  Butler  ». 
Duval,  4  Yerg.,  2(i5;  Clode  v.  Bayley,  12  M.  &  W.,  51. 
9,9 


338  nottcf:  of  dishonor  of  commercial  paper. 

as  against  any  particular  subsequent  party,  except  the  holder. 
The  drawer  of  a  bill,  or  the  first  of  any  number  of  indorsers 
of  a  bill  or  note,  may  be  bound  by  notice  directly  from  the 
holder,  although  all  intermediate  parties  are  discharged  for  the 
want  of  notice.'  The  manifest  reason  of  this  is  that  no  one 
can  have  any  Interest  in  fixing  the  liability  of  subsequent 
parties,  while  each  is  interested  in  seeing  that  antecedent 
parties  are  not  discharged.  The  general  and  most  prudent 
course,  however,  is  for  the  party  giving  the  notice,  to  notify 
all  the  prior  parties  whose  residences  or  places  of  business  are 
known  to  him.^ 

^  73T.  Notice  of  Partial  Dishonor.  —  It  does  not  always  follow 
that  an  indorser  is  completely  discharged  from  liability,  where 
from  failure  of  notice  of  partial  dishonor  of  a  negotiable  note 
bearing  his  indorsement,  he  is  partially  discharged.  As  where 
the  note  was  paj'able  by  installments,  falling  due  at  different 
periods,  it  was  held  that  the  notice  should  have  been  given 
upon  failure  to  ]>ay  each  installment,  at  the  time  it  fell  due, 
precisely  in  the  same  manner  as  though  the  several  sums  were 
evidenced  by  separate  notes.  Notice  being  given  of  the  failure 
to  pay  the  final  installment,  this  was  held  sufficient  to  fix  the 
indorser's  liability  ^ro  tanto^  though  he  was  clearly  discharged 
witli  respect  to  those  of  the  dishonor  of  which  no  notice  had 
been  given. ^ 

§  738.  Indorser  of  Over-due  Paper.  —  The  authorities  are  not 
in  perfect  accord  as  to  the  right  of  an  indorser  of  negotiable 
paper  which,  at  the  time  of  indorsement,  was  past  due,  to  notice. 
The  doctrine  is  announced  in  Gray  v.  BelP  and  \^an  IToesen  v. 
Van  Alstyne,^  that  indorsers  of  over-due  paper  are  not  entitled 
to  notice  of  its  dishonor,  beyond  such  as  would  arise  from  the 
))riTiging  of  a    suit    within   a  reasonable  time,   which   might 

^2  Daniel  on  Negot.  Inst.,  i^  987. 

*  Hutz  V.  Karthause,  4  W^ash.  C.  Ct..  1 ;  Williams  o.  Baalc  of  United  States, 
2  Pet.,  06. 

"Ea-traan  o.  Turin  uu,  24  Cal.,  ;J79. 

*  3  Rich.,  71. 

'  3  Wend..  75. 


TO    WHOM    GIVEN.  339 

extend  to  several  months.  In  the  latter  case  three  months 
was  regarded  as  a  reasonable  time.  But  notwithstanding  the 
views  expressed  in  these  two  cases,  the  current  of  authority- 
seems  to  be  decidedly  against  the  exception  therein  contended 
for.  Indorsers  after  maturity,  as  well  as  indorsers  of  paper 
due  at  sight  or  on  demand,  sustain  the  same  relations  to  eacli 
other,  and  to  other  parties,  in  regard  to  the  matter  of  notice, 
as  indorsers  of  time  paper,  before  maturity,  with  the  single 
exception  that  they  have  a  right  to  insist  upon  the  exercise  of 
diligence  on  the  part  of  the  holder  in  demanding  payment. 
Such  indorsement  is  regarded  as  equivalent  to  drawing  a  new 
bill,  or  making  a  new  note,  payable  at  sight  or  on  demand.' 

§  739.  Illustration  of  above.  —  In  rendering  the  opinion  of  the 
court  in  Colt  v.  Barnard,'^  where  the  note  had  been  negotiated 
subsequent  to  its  dishonor,  Shaw,  C.  J.,  uses  the  following  lan- 
guage: "If  the  indorser  is  liable  at  all  on  such  indorsement,  it  is 
in  virtue  of  the  law  merchant,  which  creates  a  conditional  lia- 
bility to  pay  if  the  maker,  on  presentment,  shall  neglect  or  refuse 
to  pay,  and  seasonable  notice  of  such  dishonor  is  given  to  the 
indorser.  It  is  very  clear  that  a  promissory  note  is  negotiable 
after  it  falls  due,  as  well  as  before.  Each  indorsement  is  in  the 
nature  of  a  new  draft,  by  which  the  holder  orders  the  maker  to 
pay  the  contents  to  the  indorsee.  *  '"  *  *  *  All  the  reasons 
which  require  a  demand  and  notice,  in  any  case,  to  charge  the 
indorser,  apply  to  this.  There  is  the  same  reason  for  prompt 
notice,  namely,  that  the  indorser  may  take  measures  to  secure 
payment  if  the  note  is  dishonored  on  presentment."^ 

§  740.  Paper  Re-issued  by  Indorser.  —  However,  where  a  party 
has  paid  and  taken  up  the  instrument  upon  which   he  was  lia- 

'  Liglit  V.  Kingsbury,  50  Mo.,  331 ;  Thompson  v.  Williams,  14  Cal.,  160 : 
Hebee  v.  Brooks,  12  Id.,  308;  JoiU'S  v.  Middleton,  29  la.,  188;  McKewer  v^ 
Kirtlaud,  33  la.,  348;  Colt  v.  Barnard,  18  Pick.,  2G0;  Grecly  v.  Hunt,  21  Me.' 
455;  B  sliop  V.  Dexter,  2  Conn.,  419;  Berry  ?;.  Robinson,  9  Johns.,  121; 
Branch  Bank  v.  Gafnej-,  9  Ala.,  153;  Hart  v.  Munsou,  7  Minn.,  74;  Leavitt 
V.  Prtnam,  3  N.  Y.,  494;   Iz-ckwood  /;.  Cnuvtbrd,  18  Conn.,  3G1. 

^  8upra. 

*  McKiniicy  v.  Crawibrd,  8  S.  <k  11.,  351 ;  Hugely  v.  Davidson,  2  Mills  (!onst. 
U.,  33;  Moody  v.  Mack,  43  Mo.,  210;  Davis  v.  Francisco,  11  Id.,  572. 


340  NOTICE    OF    niSirONOK    OF    COMMKRCIAL    PAl'KK. 

ble  as  indorser  after  maturity,  and  liis  liability,  as  vvell  as 
that  of  other  parties,  has  been  fixed  by  due  notice  of  dishonor, 
and  he  re-issues  the  paper,  he  will  not  be  entitled  to  notice  of 
a  subsequent  dishonor.'  The  reason  for  this  distinction  is 
that  the  indorser's  conditional  liability  grows  out  of  his  con- 
tract of  indorsement,  and  not  out  of  the  re-issue  of  the  instru- 
ment. His  liability  as  indorser  was  fixed  by  notice  of  the 
first  default  of  payment,  and  notice  of  demand  and  non-pay- 
ment after  he  had  again  put  the  paper  in  circulation,  would  be 
as  useless  as  notice  to  the  maker  of  a  promissory  note. 

§  741.  Purchase  at  Indorser's  Request — Notice  Unnecessary.  — 
So  where  the  indorser,  subsecpient  to  the  dishonor  of  the  note, 
persuaded  the  holder  to  purchase  it,  notice  of  the  subsequent 
dishonor  was  held  to  be  unnecessary,  as  the  purchaser  had  a 
right  to  infer,  from  the  interest  manifested  by  the  indorser, 
that  his  liability  had  already  been  fixed  by  notice.^ 

§  742.  Transferrer  by  Delivery  not  Entitled  to  Notice.  —  It  is  not 
enough  to  entitle  one  to  notice  of  the  dishonor  of  commercial 
paper,  as  an  indorser,  that  the  instrument  dishonored  has 
passed  through  his  hands,  and,  by  reason  of  its  non-payment, 
he  has  been  called  upon  to  reimburse  his  transferee.  He  may 
have  transferred  the  paper  by  mere  deliveiy,  and  bound  him- 
self by  an  independent  contract,  to  answer  for  its  prompt 
payment.  To  be  entitled  to  notice,  the  party  transferring  nego- 
tiable paper  must  do  so  hy  regular  indorseinent,  so  that  all 
subsequent  parties  may  be  informed  of  the  interest  he  has  in 
its  ultimate  fate.^ 

§  743.  Notice  to  Agent.  —  Notice  of  dishonor  may  be  given 
to  an  agent  of  tlie  party  to  be  charged,  in  the  same  manner, 
and  with  like  effect,  as  it  may  be  given  to  the  part}'  in  person, 
provided  the  authoi'ity  of  the  agent  extends  to  the  receipt  of 
notices  of  this  sort." 

•  St.  John  «.  Roberts,  81  N.  Y.,  441;  Williams  ».  Maftliews,  3  Cow.,  252; 
2  Dan.  on  Ncgot.  Inst.,  i^  997.  But  see  Montoomery,  &c.,  K.  K.  Co.  v.  Trebles. 
44  Ala.,  255,  where  this  doctrine  seems  to  be  doubted. 

■'  Libby  v.  Pierce,  47  N.  H.,  309. 

'Van  Wart  ?;.  Woolley,  3  Barn.  &  Cres.,  439. 

*  See  Ch.  IV.    Pt.  II.    Notice  to  an  agent;  also  cited  Infra. 


TO    WHOM    GIVEN.  841 

§744.  Example  of  Autliority  to  Receive  Notice.  — Where  H,  by 
letter  of  attorney',  constituted  F  his  agent  and  attorney,  gen- 
eral and  special,  with  full  powers  for  and  in  the  name  of  his 
principal,  or  in  his  own  name  and  for  his  own  use,  to  make, 
indorse,  draw,  accept,  and  negotiate  bills,  notes,  etc.,  the  letter 
stating,  in  conclusion,  "  that  it  was  to  be  taken  and  understood 
in  its  fullest  and  most  comprehensive  sense  and  meaning,"  and 
F  made  his  own  note,  payable  in  bank,  and  indorsed  it  in  the 
name  of  his  principal,  this  letter  of  attorney  was  held  to  author- 
ize the  attorney  to  receive  notice  of  the  dishonor  of  the  note 
so  indorsed,  so  as  to  fix  his  principal's  liability  to  the  holder 
or  subsequent  indorser.' 

§  745.  Authority  may  be  Implied.  —  In  order  to  render  notice, 
served  upon  an  agent  valid  and  binding  as  notice  to  the  prin- 
cipal, it  is  not  essential  that  the  agency  should  be  created  by 
letter  of  attorney.  The  authority  of  the  agent  may  be  im- 
plied as  well  as  express.  And  if  the  circumstances  are  such 
as  to  warrant  the  implication  that  the  relation  of  principal  and 
agent  subsists  between  the  party  entitled  to  notice,  and  the 
one  to  whom  it  is  given,  it  will  operate  as  eft'ectually  to  charge 
the  princijjal  as  though  the  agent  had  been  expressly  author- 
ized.^ 

§  746.  Question  of  Fact.  —  In  Wilkins  v.  Commercial  Bank,-^ 
the  agent  whose  power  of  attorney  had  expired  b}-  limitation, 
was  still  in  the  habit  of  receiving  letters  addressed  to  his  prin- 
cipal, who  called  at  the  office  of  the  agent  for  his  mail. 
Notice  of  dishonor  of  a  bill  of  which  the  principal  was  an 
indorser,  was  left  for  him  at  the  office  of  the  agent,  as  usual. 
The  agent  had  no  recollection  of  either  receiving  the  notice  or 
delivering  it  to  his  principal.  Under  these  circumstances  it 
was  held  that  the  implication  of  agency  was  a  question  of  fact 

'Wilcox  V.  Kouth,  0  Sm.  &  JIuisli.,  470;  Smith  v.  Tliiitchcr,  4  B.  & 
Aid.,  200. 

'■  Wilkins  v.  Commercial  T^ank,  G  How.  (Miss.),  217;  Hesters  v.  Petrovic, 
1  Rob.  (La.),  119;  Wilsoa's  Executrix  v.  Senier,  14  Wis.,  aSO. 

*  Supra. 


342  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

for  tlie  jury,  and  if  found  to  exist,  tlie  notice  so  served  was 
pufficient  to  bind  tlie  principal. 

§  747.  Agent  with  General  Authority.  —  So,  ill  Hesters  v. 
Petrovic,^  wliere  tlie  indorser  was  absent  from  home,  and  had 
left  an  agent  in  charge  of  his  plantation,  with  anthority  to 
collect  for  him  and  furnish  all  necessary  supplies  for  his  plan- 
tation, the  notice  of  dishonor  being  served  npon  such  agent, 
was  held  sufficient  to  bind  the  principal. 

§748.  Appointed  Prior  to  the  AVar.  —  jSTotwithstanding  the 
interruptions  of  commercial  relations,  which  follow  the  out- 
break of  a  war,  and  which  prevent  the  citizens  or  subjects  of 
one  of  the  bellio-erents  from  can-vino-  on  business,  either  bv 
themselves  or  their  agents,  within  the  territory  of  the  other 
belligerent,  it  is  a  well  recognized  doctrine  in  such  cases  that 
agents  appointed  prior  to  the  war  may  act  so  as  to  bind  their 
principals  after  the  commencement  of  hostilities.^  It  was 
accordingly  held  where  an  agent  was  constituted  prior  to  the 
late  civil  war  in  this  country,  with  authority  to  receive  notice 
of  the  dishonor  of  commercial  paper  indorsed  by  his  principal, 
that  notice  might  be  pffectualh'  served  upon  such  agent  after 
the  commencement  of  hostilities,  though  his  principal  was 
then  domiciled  within  the  enemies  lines.'^ 

§  749.  Example  where  Anthority  not  Implied. — Nevertheless,  it 
is  not  every  species  of  agency  that  will  authorize  the  service 
of  notice  of  the  dishonor  of  commercial  paper  on  the  agent, 
for  the  purpose  of  fixing  the  liabilit}'  of  the  principal  as 
indorser.  The  agent  may  have  extensive  powers  under  a  let- 
ter of  attorne}^  and  still  not  be  the  proper  person  to  receive 
notice  of  the  dishonor  of  a  bill  or  note.  As  where  one  held  a 
letter  of  attorney  from  one  of  the  stockholders  of  a  bank,  autho- 
rizing him  to  receive  and  sign  receipts  for  all  dividends  on  his 
stock,  to  vote  as  his  proxy,  to  deposit  money  in  said  institution, 

'  1  Rob.  (La.).  119. 

'Buchanan  i\  Curry,  10  Johns.,  137;  U.  S.  v.  Gros.smayer,  9  Wall.,  72; 
Ward  V.  Smith,  7  Wall.,  447 ;  Conn  t.  Penn,  1  Pet.  C.  Ct.,  4!)(J ;  Deuuistou  v. 
Imbrie,  8  Wash.,  C.  Ct.,  8915;  Paul  v.  Christie,  4  Harris  &  IMcH.,  161 ;  Rob- 
in«on  V.  Int.  Life  As.  Soc,  42  N.  Y.,  54. 

'  Hubbard  ?).  Matthews,  54  N.  Y.,  43. 


TO    WHOM    GIVEN.  343 

and  dru'u-  eliecks,  to  lodge  promissory  notes,  and  to  sign  accept- 
ances of  bills  of  exchange  for  his  principal;  this  extensive 
grant  of  powers  would  seem  to  be  sufficiently  comprehensive 
to  include  everything  essential  to  the  credit  of  the  principal 
in  dealing  with  negotiable  instruments;  but  it  was  held  that 
the  power  conferred  was  sjyecial,  and  did  not  include,  either 
expressly  or  by  implication,  authority  to  receive  notice  of  the 
dishonor  of  commercial  paper,  upon  which  the  principal  was 
liable  as  indorser;  hence,  notice  given  to  such  attorney  would 
not  bind  his  principal.^ 

§  750.  Not  Implied  from  Authority  to  Imlorse.  —  So  it  was  held 
where  the  agent  was  duly  authorized  and  empowered  to 
indorse  for  the  principal,  that  this  did  not  imply  authority  in 
such  agent,  to  accept  notice  of  dishonor,  even  of  a  bill  or  note, 
indorsed  pursuant  to  such  authority;^  but  this  case  can  hardly 
be  followed,  so  long  as  we  admit  that  the  authorization  of  the 
agent  may  be  imjylied  as  well  as  express.  If  the  notice  of 
dishonor  might  not  be  given  to  the  agent  who  indorsed  the 
instrument,  without  further  inquiry  as  to  his  authority  to 
accept  notice,  it  is  difficult  to  imagine  a  case  where  this  power 
is  not  expressly  granted,  that  would  admit  of  the  principal's 
being  bound  by  notice  given  to  his  agent. 

§  751.  Notice  to  Partners.  —  Where  the  bill  or  note  is  drawn 
or  indorsed  by  two  or  more  persons  who  are  engaged  in  busi- 
ness as  partners,  and  the  draft  or  indorsement  is  made  by  them 
acting  in  their  partnership  capacity,  they  thereby  become 
jointly  and  severally  liable,  as  upon  other  partnership  contracts, 
and  a  notice  of  non-acceptance  or  non-payment  served  upon 
either,  will  be  sufficient  to  bind  them  both.^ 

§  752.  Indorsement  During  Partnership.  —  In  order  that  the 
liability  of  both  partners  may  be  fixed  by  a  notice  served  upon 
one  of  them,  it   is  essential    that  the   draft  or  indorsement 

'  Lonisiana  St.  Bk.  v.  Ellery,  4  Mart.,  N.  S.  (La.),  87. 

''Valk  v.  Gaillanl,  4  Stroh.  (8.  C),  99.  Set-  alwo,  Wilcox  «.  Houth,  9  Sm.  & 
Marsh.,  476. 

'Gowan  v.  Jarkson,  20  -Johns.,  175;  Porthousc  «.  Parker,  1  Camp.,  82; 
Story  on  B.,  gg2!J9,  305;  Story  on  Prom.  Notes,  §308. 


344  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

sliould  have  been  made  during  the  continuance  of  the  cc-part- 
nership,  or  at  least  in  connection  with  the  partnership  busi- 
ness; but  it  is  not  necessary  that  the  partnership  relation 
should  continue  until  the  maturity  and  dishonor  of  the  instru- 
ment, and  the  service  of  the  notice.' 

§  Y53.  After  Dissolution.  —  So  a  partnership  has  been  held 
bound  b}'-  such  notice  after  dissolution,  when  it  was  dissolved 
by  the  outbreak  of  the  civil  war,  and  one  of  the  members  of 
the  late  iirm,  was,  at  the  time  the  notice  M'as  given,  living 
within  a  hostile  state.- 

§  754.  To  Agent  of  one  of  the  Partners.  —  It  has  been  held 
also  where  a  dissolution  of  partnership  took  place  after  the 
partners  had  indorsed  a  note,  that  notice  of  its  subsequent 
dishonor  mio^ht  be  mven  to  the  a^^ent  of  one  of  them.^ 

§  755.  To  Surviving  Partner.  —  So,  also,  where  one  of  the 
partners  died  after  the  obligation  was  incurred,  it  was  held 
that  notice  to  the  surviving  ])artner  would  bind  the  personal 
representatives  of  the  deceased.^ 

§  756.  Excei)tion  as  to  Partners — Planner  of  Service. —  In  Hume 
V.  AVatt,'  an  exception  is  made  as  to  the  validity  of  notice  to 
bind  partners  when  served  upon  one,  and  such  service  was  held 
to  bind  neither^  because  one  of  tlie  partners  resided  in  the 
place  where  the  note  was  dishouDred,  and  where  tlie  party 
resided  who  gave  the  notice.  Instead  of  giving  him  personal 
notice,  it  was  sent  through  the  mail  to  the  other  partner  who 
was  a  non-resident  of  the  place,  and  it  was  not  received  until 
several  days  after  the  time  within  which  it  should  have  been 
personally  served  upon  the  resident  partner.® 

§  757.  Joint  Indorsers  not  Partners. — Where,  however,  the  joint 
drawers  or  indorsers  of  the  bill  or  note  do  not  sustain  towards 

'  Coster  V.  Tliomasoa,  19  Ala.,  IST.  S.,  717;  Slocomb  i>.  Lizanli,  31  La.  An., 
355;  Griswold  v.  WacUliuccton,  16  /d..-t84;  Clarke  v.  Morey,  10  Johns.,  69; 
Fourth  National  Bank  «.  Henschen,  52  Mo.,  209. 

«  Hubbard  c.  Matthews,  54  N.  Y.,  43. 

''  Brown  v.  Turner,  15  Ala.,  N.  S.,  832. 

■»  Dabuey  -o.  Stidger,  4  Sui.  &  Marsh.,  749. 

'5  Kas,  ,34. 

*  See  Po»t,  IV. 


TO    WHOM    GIVEN.  345 

eacli  other,  in  the  transaction,  the  relation  of  partnertj,  the  rule 
is  quite  different,  and  the  notice  of  dishonor  should  be  given 
to  each.,  as  all  are  equally  entitled  to  notice.^ 

§  758.  Agency  not  Implied  from  Joint  Intlorsenieut.  —  Where 
notice  has  been  given  to  one  of  such  joint  indorsers,  there  is 
nothing  in  the  nature  of  the  relations  existing  between  thein 
with  respect  to  tlie  instrument  by  which  they  are  bound,  that 
will  authorize  one  to  accept  or  waive  service  of  notice  for  his 
co-indorser  or  indorsers,  so  as  to  bind  them,  unless  by  him  or 
them  especially  authorized  so  to  do.  The  mere  fact  of  their 
having  joined  in  the  draft  or  indorsement,  will  not  amount  to 
a  presumption  or  implication  of  mutual  agency,  by  reason  of 
which,  one  may  be  bound  in  any  way,  by  the  acts  or  admissions 
of  the  others."^ 

§  759.  Conseqnences  of  Failure  to  Notify  both  Joint  Indorsers.  — 
And  where  the  contract  of  indorsement,  or  the  draft  is  strictly 
joint  in  its  nature,  the  consequences  of  a  failure  to  give  notice 
to  one  of  the  joint  drawers  or  indorsers,  will  not  be  confined 
to  the  discharge  from  liability,  of  the  one  to  whom  such  notice 
is  not  given.  Their  contract  being  joint  and  not  several.^  the 
discharge  of  one  would  discharge  all.  So  that,  not  only  would 
the  failure  of  notice  release  those  not  notified,  but  would  also 
discharge  those  to  whom  notice  was  actually  given.^ 

§  760.  Assumption  of  Antliority  bj'  one,  for  all,  binds  Him.  — 
Nevertheless,  circumstances  might  ai'ise  where  a  joint  obligor 
would  not  be  discharged  from  liability  on  such  a  contract, 
by  a  failure  to  notify  some  one  or  more  of  his  co-obligors. 
As  where,  upon  notice  being  given  to  him,  he  assumed  to  act 
for  liis  co-parties,  in  waiving  or  accepting  notice.  Though  it 
is  quite  clear  that  if  he  acted  without  authority,  the  others 
would  not  be  bound,  yet  it  would  be  supporting  him  in  the 

'  Sayre  «.  Frick,  7  W.  ifc  S.,  388;  Bank  of  U.  S.  v.  Beirne,  I  Gratt.,  234. 
Oontrn,  see  Dodire  v.  Bank  of  Kentucky,  3  A.  K.  Marsh,  filO. 

•' Shcpard  v.  Ilawley,  1  Conn..  36!);  Willis  v.  Green,  5  Hill,  232;  Miser  v. 
Trovinger,  7  Ohio  St.,  2S1. 

» People's  Bank  v.  Ke(.-eli,2(i  Md.,521  ;  State  Hank  v.  Slauirhter,  7  Bhickf, 
133;  Bank  of  Chenango  y.  Root,  4  Cow.,  12(i;  Wood  v.  Wood,  IG  N.  J.,  438. 


0-i:6  NOTICE    OF    DISHONOIi    OF    COMMERCIAL    PAI'EK. 

perpetration  of  a  fraud,  to  allow  that  lie  might  take  advantage 
of  the  consecjuences  of  his  own  misrepresentation.  Even 
where  no  fraud  was  apparent  in  such  transaction,  the  doctrine 
that  renders  a  pretended  agent  personally  liable  fur  the  con- 
tracts entered  into  without  sufficient  authority  to  bind  his 
principal,  might  be  interposed,  and  the  party  actually  notified 
held  for  the  entire  amount  of  the  dishonored  paper,  as  though 
he  were  a  several  indorser. 

§  761.  Circurastauces  Adniittiiig  Natice  to  Joint  Iiidoi-sers.  —  In 
the  case  of  Willis  v.  Green,^  where  one  of  two  joint  indorsers 
of  a  note  died,  and  the  survivor  took  from  the  maker  a  bond 
and  warrant  of  attorney,  by  way  of  security  or  indemnity,  and 
had  collected  thereon  nearly  the  amount  of  the  note,  it  was 
held  to  be  an  admission  that  proper  steps  had  been  taken  to 
charge  l)oth  indorsers. 

§  762.  Joint  Administratoi's  Cannot  ti<*  tlieir  Hands,  —  But,  not- 
withstanding one  of  such  joint  parties  may  by  his  action  in 
the  premises  estop  himself  from  denying  that  the  proper  steps 
have  been  taken  to  fix  the  liability  of  all  the  parties,  the  per- 
sonal representatives  of  a  deceased  indorser  cannot  so  tie  their 
own  hands.  It  was  accordingly  held  that  a  subsequent  prom- 
ise by  two  of  three  joint  administrators  of  a  deceased  indorser, 
to  pay  the  note,  where  there  had  been  a  partial  failure  of  notice, 
would  not  operate  as  a  waiver  of  irregularities  calculated  to 
render  the  service  of  the  notice  insufficient.^ 

§  763.  Notice  to  Personal  Representatives.  —  In  the  event  of 
the  death  of  a  drawer  or  indorser,  due  notice  to  his  personal 
representativ'CS  will  be  sufficient,  and  where  the  holdeV  has 
notice  of  the  appointment  and  qualification  of  an  administra- 
tor or  executor,  when  the  note  or  bill  is  dishonored,  such  rep- 
resentative is  entitled  to  the  same  notice  as  should  have  been 
given  the  indorser  or  drawer,  were  lie  living  at  the  time  of 
dishonor.^ 


'  8vpra. 

» Cayuga  County  Bank  r.  Bennett.  5  Hill,  3'^6. 

"OrientRl  Bank  v.  Blake,  22  Pick.,  206;  Stewart  c.  Eden,  2  Cai.,  121. 


TO    WHOM    GIVEN.  34-7 

§  764.  How  Notified  by  Letter.  —  Where,  however,  tlie  liolder 
juid  the  representatives  of  the  party  to  be  notified  reside  in 
difierent  places,  so  that  notice  niaj  properl_y  be  transmitted 
through  the  mail,  and  the  holder  cannot  by  the  exercise  of 
reasonable  diligence  ascertain  the  names  of  such  representa- 
tives, they  may  be  notified  by  a  letter  which  is  not  addressed 
to  them  by  their  names.  In  such  a  case,  or  where  the  admin- 
istrator of  an  intestate  indorser  or  drawer  has  not  been  appoint- 
ed, the  notice  will  be  sufficient  if  addressed  to  "the  personal 
representatives"  of  deceased.^ 

§  765.  Sufficient  Avlien  Addressed  to  Deceased  Indoi-ser.  —  So, 
where  the  notary  in  whose  hands  the  note  was  placed  for  the 
purpose  of  demand,  and,  in  case  of  default  of  payment,  notice 
of  dishonor,  being  ignorant  of  the  death  of  the  indorser, 
addressed  the  letter  containing  the  notice  to  such  indorser, 
which  notice,  in  due  time  came  to  the  hands  of  his  personal 
representatives,  the  notice  was  held  sufficient  to  bind  the  estate 
of  the  decedent,  as  though  he  had  personally  received  the 
notice  prior  to  his  decease.^ 

§  766.  Left  at  last  Dwelling-place  of  Deceased.  —  So,  also, 
where  the  indorser  died  at  sea,  ten  days  prior  to  the  maturit}^ 
of  the  note,  but  his  death  was  unknown  to  the  holder  of  the 
note,  until  long  after  its  maturity  and  dishonor,  a  notice  left 
at  his  last  dwelling-place  in  x^ew  York  could  not  be  impeached 
for  not  being  given  to  the  proper  party.^ 

§  767.  Addressed  to  Indnrser  Known  to  be  Dead.  —  And  it  has 
been  held  where  the  holder  knew  of  the  death  of  the  indorser, 
but  upon  diligent  inquiry  failed  to  have  the  names  of  the 
personal  representatives,  that  notice  sent  inclosed  in  a  letter 
directed  to  the  indorser  himself,  would  be  sufficient.^ 

§  768.  To  One  of  several  Personal  Representatives.  —  Where 
the  notice  was  sent  to  one  of  several  personal  representatives 

'  Boyd  V.  Orton,  16  Wis.,  495;  Boyd  v.  City  Savings  Bank,  15  Gratt.,  501. 
'^  Beals  V.  Peck,  12  Barb.,  245 ;  Maspero  v.  Pedesclaux,  22  La.  An.,  227. 
"Merchants'  Bank  v.  Birch,  17  Johns.,  25. 
*  Barnes  v.  Reynolds,  4  How.  (Miss.),  114. 


34vS  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

of  a  deceased  indorser,  this  was  held,  under  the  laws  of  that 
state  sufficient  notice  to  bind  the  estate.' 

§769.  To  Assignee  in  Bankruptcy  or  to  Bankrupt.  —  Where 
the  indorser  or  drawer  becomes  bankrupt  subsequent  to  draw- 
ing or  indorsing  the  bill  or  note,  the  notice  should  be  given  to 
the  assignee  where  one  has  been  selected,  prior  to  the  dishonor 
of  the  instrument;  but  until  such  assignee  has  been  selected, 
it  would  always  be  safe  to  notify  the  bankrupt  himself,  as  he 
is  the  only  representative  of  his  estate  until  the  assignee  is 
chosen,  except  in  cases  where,  pending  proceedings  in  bank- 
ruptcy, a  recewer  is  appointed.^ 

§770.  Before  Selection  of  Assignee.  — In  ex  parte  Moline,^  the 
holder  of  the  note  appeared  at  the  second  public  meeting, 
under  the  commission,  and  the  instrument  having  been  dis- 
honored subsequent  to  the  commission,  notice  of  such  dis- 
honor was  giv^en  before  the  selection  of  an  assignee,  and  such 
notice  was  held  sufficient  upon  the  grounds  already  stated. 

§  771.  Bankruptcy  of  Acceptor  no  Excuse.  —  Where  both 
drawer  and  acceptor  were  declared  bankrupt  before  the  matu- 
rity of  the  bill,  and  the  holder  had  timely  notice  of  the 
appointment  of  assignees,  it  was  held  that  notice  should  have 
been  given  either  to  the  drawer  or  his  assignees,  of  the 
demand  and  refusal  of  payment  at  maturity.  There  being  no 
notice  given  to  either,  although  the  drawer's  place  of  business 
was  open,  and  in  charge  of  a  messenger,  and  there  being  no 
excuse  for  failure  of  notice,  except  the  bankruptcy  of  the 
acceptors,  the  bill  was  not  allowed  to  be  proved  under  the  com- 
mission issued  against  the  drawer.* 

§772.  Miglit  he  to  Bankrupt  after  Assignment.  —  It  has  been 
asserted  by  high  authority,^  that,  even  after  the  assignment, 
notice  may  be  etl'ectually  gi\en  to  antecedent  parties  by  a 
bankru]>t  indorser,  for  the  reason   that  he   still  has  an  interest 

'Lewis  V.  Bakewcll,  6  La.  An„  i}59. 
"Ex  parte  MoliuL\  U)  Ves.  Ch..  216. 
^  Supra. 

*  Piohde  T.  Proctor,  4  Barn.  &  Cress.,  517. 

*  Story  on  Prom.    Notes,  5^  305. 


TO    WHOM    GIVEN.  349 

in  the  bill  or  note,  and  will  be  benefited  by  shifting  the  duty 
of  payment,  upon  those  who  are  antecedently  liable  on  the 
instrument.  By  a  parity  of  reasonint^,  we  might  ssij,  that,  as 
the  bankrupt  drawer  or  indorser  lias  an  interest  in  securing 
re-imbursement  for  the  benefit  of  his  estate,  notice  should  be 
given  to  him,  or  at  least  might  be  given  him  and  thereby 
charge  his  estate. 

§  773.  To  Infant  Party.  —  Where  the  indorser  or  drawer  is  an 
infant,  he  is  entitled  to  notice  of  the  dishonor  of  the  instru- 
ment, and  it  should  be  given  him,  precisely  as  though  he 
were  of  full  age.  He  may  not  choose  to  plead  the  disability 
of  infancy  in  defense,  and  if  it  be  waived  by  him,  it  cannot  be 
interposed  by  antecedent  parties  who  receive  notice  of  the  dis- 
honor through  hira.^ 

§  774.  Married  Woman.  —  Where  the  draft  or  indorsement  is 
made  by  a  yetne  sole,  who,  previous  to  the  maturity  of  the 
instrument  drawn  or  indorsed,  marries,  in  case  of  default  of 
acceptance  or  payment,  notice  thereof,  should,  in  general,  be 
given  to  her  husband."  The  exceptions  to  this  would  probably 
be  where  the  indebtedness  was  a  charge  upon  her  separate  estate 
in  equity,  or  where,  by  statute,  man-ied  women  are  held  per- 
sonally liable  on  their  contracts,  whether  entered  into  before 
or  after  marriage. 

§  775.  Drawer  or  Indorser  Insane.  —  Should  the  drawer  or 
indorser  become  insane,  or  otherwise  incapable  of  managing 
his  own  affairs,  subsequent  to  incurring  the  conditional 
liability  and  previous  to  the  maturity  of  the  instrument,  so 
that  the  appointment  of  a  guardian  became  necessary,  in  the 
event  of  the  instrument's  being  dishonored  at  maturity,  notice 
thereof  should  be  given  to  such  guardian..^ 

'  Story  on  Prom.     Notes,  §  311. 
*  Ibid. 


850  NOTICE    OF   DISIIONOK    OF    COMMEBOIAL    PAPER. 


III.  Time  of  Giving  Notiok. 

§  776.  Importance  of  Question  of  Time. 

777.  Results  of  Judicial  Legislation. 

778.  Division  of  Subject. 

779.  Must  be  Subsequent  to  Dishonor. 

780.  Effect  of  Payment  on  Day  of  Dishonor. 

781.  May  be  given  on  Last  Day  of  Grace. 

782.  Time  of  Dishonor. 

783.  Refusal  to  Pay  at  Maturity. 

784.  Failure  and  Qualified  Refusal. 

785.  To  Resident  of  Same  Place. 

786.  Time  ot  Delivery,  and  not  of  Sending. 

787.  At  Place  of  Business,  or  Residence. 

788.  Hours  at  Place  of  Business. 

789.  Hours  at  Place  of  Residence. 

790.  Nine  O'Clock  P.  M. 

791.  When  Left  on  Day  of  Dishonor. 

792.  Parties  Resident  in  Different  Places. 

793.  By  Mail— Time  of  Depositing  Letter. 

794.  General  Construction  of  "  Reasonable  Time." 

795.  Each  Party  has  his  Day. 

796.  Statement  of  Lord  Ellenl)orough. 

797.  The  Day  of  one  Party  not  for  the  Benefit  of  Another. 

798.  Consequence  of  Numerous  Parties  Taking  one  Day. 

799.  Time  not  always  Measured  by  Number  of  Parties. 

800.  Difficulties  in  Applying  the  Rule. 

801.  Chitty's  Doctrine  as  to  "Next  Day." 

802.  Criticism  of  above  by  Story— Twenty-four  Hourd. 

803.  Impracticability  of  Chitty's  Rule. 

804.  Inconvenience  of  Story's  Rule. 

805.  Judicial  Construction  of  General  Rule, 
80(5.  Unreasonably  Early  Hour. 

807.  The  Hour  of  Closing  :\Iail. 

808.  Five  O'Clock  too  Early. 

809.  Seven  O'Clock  too  liiarly. 

810.  Six  O'Clock  the  Hour  of  Closing. 

811.  Ten  Minutes  past  Nine  O'CJlnck. 

812.  Might  be  Reastmable  Earlier  than  Nine. 

813.  Half-past  Nine  he!d  loo  Karly. 


TIMK    OF    GIVING     NOTICE.  351 

814.  Rule  Construed  by  Marshall. 

815.  Not  Necessar}-  to  be  Sent  by  First  Mail. 

816.  Mere  Formal  Compliance  with  Rule  not  Required. 

817.  Agents  or  Attorneys  have  their  Day. 

818.  Must  be  Secular  Day. 

819.  Jewish  Festival. 

820.  Sunday. 

821.  Time  Refers  to  Hour  of  Mailing. 

822.  Law  of  Place  of  Contract  Governs. 

823.  Consequences  of  adopting  Unusual  Modes. 

824.  Question  of  Law  and  Fact. 
^25.  Waiver  and  Excuse. 

826.  Deductions  from  Authorities  Cited. 

827.  No  Exceptions  to  Rule  Requiring  Notice  in  Reasonable  Time. 


j^  776.  Importance  of  Question  of  Time.  —  No  branch  of  the 
subject  considered  in  this  chapter  is  of  greater  importance 
than  that  which  treats  of  the  time  within  which  notice  of  the 
dishonor  of  a  negotiable  instrument  must  or  raay  be  given, 
in  order  to  bind  tlie  party  notified.  No  question  affecting 
commercial  paper  has  been  the  subject  of  more  anxious  inquiry; 
none  of  the  mooted  questions  have  provoked  a  greater  amount 
of  litigation  nor  drawn  out  the  expression  of  sucli  a  contrariety 
of  opinion  ;  and  it  is  still  announced  from  the  bench,  and  by 
leading  text  writers,  that  the  only  ruU  known  to  the  law  mer- 
chant in  this  respect  is  that  the  notice  must  be  given  within 
a  reasonable  tivie^  and  that  what  is  a  reasonable  time  must 
in  every  instance  depend  noon  the  circumstances  peculiar  to 
each  case.^ 

§  777.  Results  of  Judicial  Legislation.  —  In  fact,  there  can  be 
no  rule  of  universal  application  laid  down,  which  will  0])erate 
with  even  a  tolerable  approximation  to  equality.  The  cir- 
cumstances by  which  the  question  of  the  reasonableness  of  the 
time  is  affected  ai-e  so  different  in  their  character  that  it  has 
been  found  necessary  by  the  courts  to  promulgate  a  separate 
rule  for  each  (;lass  of  cases,  where  susceptible  of  classification, 
and   these  rules  have   been  extended  or  contracted  to  suit  the 

'Chittyon  Bills,  224-"),  and  cases  cII/mI.  1  I'ars.  N.  &  ii.,  507 ;  Slory  on 
II,  §  285.     But  see,  2  Daniel  on  Ncgot.  lii-l.,  .i  lOoo. 


3r)2  NOTICE    OF    DISItoNOK    OF    COMMEKCIAL    PAPEK. 

novel  features  of  the  cases  as  tliey  have  arisen.  This  questiou 
lias  been  so  often  litigated,  and  so  ably  and  thoroughly  dis- 
cussed by  the  courts,  that  at  this  day,  a  case  can  hardly  arise, 
for  which  somewhere  in  the  long  line  of  decisions,  reaching 
back  to  the  time  of  Lord  Mansfield,  a  precedent  may  not  be 
found  which  will  serve  as  a  guide  to  determine  what  time 
tiie  giver  of  the  notice  might  take  for  the  purpose  of  preparing 
and  serving  the  same.  The  principles  applicable  to  almost 
any  given  case,  will  be  found  as  well  settled  as  they  could  be 
by  legislation. 

§  778.  Division  of  Subject. — The  most  important  circumstances 
affecting  the  time  within  which  notice  of  dishonor  of  commer- 
cial paper  should  be  given  are,  1.  The  means  of  communica- 
tion between  the  holder  of  the  dishonored  instrument,  and  the 
partj'  to  be  notified.  2.  The  holder's  knowledge  or  want  of 
knowledge  of  the  place  of  residence  or  business  of  the  party 
to  be  notified.  3.  The  customs  of  the  place  where  the  notice 
is  given  with  relation  to  business  hours,  etc.  The  time  within 
which  notice  should  be  given  will  also  be  found  to  be  influenced 
to  a  considerable  extent  by  the  position  occupied  upon  the 
dishonored  instrument,  by  the  party  giving  the  notice.  The 
influence  of  these  cii'cumstances,  and  others  of  less  promi- 
nence, will  be  noticed,  as  instances  involving  their  operation, 
either  separately  or  together,  are  given  hereafter,  without 
regard  to  the  order  of  their  statement  above. 

§  779.  Must  be  Subsequent  to  Dishonor.  —  In  all  cases  the 
notice  must  be  given  subsequent  to  the  dishonor  of  the  bill  or 
note,^  which  cannot  take  place  prior  to  the  last  day  of  grace 
when  the  paper  is  entitled,  either  by  statute  or  the  law  mer- 
chant, to  days  of  grace.- 

§  780.  Effect  of  Payment  on  day  of  Dishonor.  —  It  was  for  a  long 
time  seriously  contended  that  not  only  must  the  notice  be 
subsequent  to  the  demand  and  refusal,  but  that  it  must  be  on 
a  subsequent  day,  for  the  reason  that  the  maker  or  acceptor 
was  entitled  to  the  entire  day  of  maturity  upon  which  to  make 

'  .Jackson  v.  Kicliards,  2  CaL,  .148. 
"Lenox  v.  Koberts,  2  Wlical.,  Tri. 


TIME    OF    GIVIKG    KuTICE.  353 

payment  and  discharn^e  himself  from  liability.  The  reason  of 
this  has  been  so  far  recognized  that  he  was  held  not  to  be 
required  to  pay  the  protest  fees,  if  payment  were  made  at  any 
time  during  the  customary  business  hours  of  the  day,  notwith- 
standing demand  may  have  been  made  upon  him  at  an  earlier 
hour  of  the  same  day.^ 

§  Y81.  May  be  Given  on  Last  Day  of  Gi'ace.  —  Nevertheless, 
where,  upon  presentment  during  any  business  hour  of  the  day, 
payment  is  flatly  refused,  the  holder  need  not  wait  until  later 
in  the  day,  in  order  to  allow  the  party  an  opportunity  to  obtain 
the  money,  or  to  give  him  the  benefit  of  any  change  of  mind 
that  may  take  place,  but  may  give  the  notice  as  soon  after 
default,  as  will  be  convenient  for  himself,  and  thereby  as  effect- 
ually charge  the  parties  notified  as  though  he  had  waited  until 
the  last  minute  of  the  last  hour  of  the  day.'^ 

§  782.  Time  of  Dishonor,  —  Lord  Ellenboeough  laid  down 
the  rule  fixing  the  time  of  dishonor,  after  which  notice  might 
be  given  so  as  to  charge  antecedent  parties,  by  declaring  that 
"  the  note  was  dishonored  as  soon  as  the  maker  had  refused 
payment  on  the  day  when  it  became  due."^  So,  in  ex  parte 
Moline,^  a  final  refusal  to  pay,  made  at  eleven  o'clock  in  the 
forenoon,  was  held  suflicient  to  excuse  the  holder  or  his  agent 
from  calling  later  in  the  day  to  repeat  his  demand. 

§  783.  Refusal  to  Pay  at  3Iaturity. —  So,  also,  in  Coleman  v 
Carpenter,^  where  the  note  was  presented  for  payment  on  Sat- 
urday, at   the  residence  of  the  maker,  and  the  holder  was- 

'  Osborne  v.  Moncure,  3  Wend.,  170.  See,  also,  Hartley  v.  Case,  1  Carr.  & 
P.,  55o,  where  it  is  held  that  if  the  acceptor  pay  the  bill  during  the  day  of 
maturity  though  after  notice  of  dishonor,  the  notice  comes  to  nothing. 

'^  Coleman  v.  Carpenter,  9  Penn.  St.,  178;  Ex  parte  Moline,  19  Ves.  Ch. 
210;  Haynes  «.  Birks,  3  Bos.  &  P.,  599;  Hine  «.  Alloly,  4  B.  &  Ad.,  G24; 
blied  V.  Brett,  1  Pick.,  401;  Lindenberger  v.  Beall,  6  Wheat.,  104;  BussardB. 
Levering,  6  Wheat.,  103;  Thorpes.  Peck,  28  Vt.,  127;  Cnrry  c.  Bank  of 
Mobile,  8  Port.  (Ala.),  3G0;  McClane  v.  Fitch,  4  B.  Mon.,  599;  Corp  c.  Mc- 
Comb,  1  Johns.  Cas.,  328;  Smith  v.  Little,  10  N.  II.,  52G. 

'Burbridge  v.  Manners,  3  Camp.,  193.  But  see  Gilbert -».  Dennis,  3  Melc, 
495,  where  it  is  held  that  notice  given  during  the  forenoon  of  the  last  day  id 
insufficient. 

*  Supra.  ^  Supra. 

23 


354  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

informed  tliat  the  party  was  not  at  home,  but  would  return  on 
Monday  and  pay  the  note,  this  was  held  as  a  flat  refusal,  and 
notice  given  the  same  day  was  regarded  as  sufficient. 

§  784.  Failure  and  Qualified  Refusal.  —  And  in  one  case,  the 
notice  given  on  the  day  of  dishonor  was  held  good,  though 
there  was  only  a  qualified  refusal  to  pay,  the  acceptor  saying, 
when  the  bill  was  presented,  that  he  had  no  effects,  but  expected 
to  have  them  in  the  course  of  the  day.  This  was  regarded  as 
an  actual  dislionor,  sufficient  to  warrant  the  notification  of 
antecedent  parties.^ 

§  T85.  To  Resident  of  Same  Place.  —  When  the  holder  or  other 
party  from  whom  notice  is  required,  or  the  agent  of  such  party, 
resides  or  carries  on  business  in  the  same  town,  city,  or  village 
as  the  prior  party  to  be  notified,  the  notice  must  be  delivered 
personally,  or  at  the  residence  or  place  of  business  of  such 
prior  party,  at  furthest,  on  the  day  next  succeeding  that 
upon  which  the  default  of  payment  was  made,  provided  tlie 
one  giving  the  notice  can,  by  the  exercise  of  reasonable  dili- 
gence, ascertain  the  residence  or  place  of  business  of  the  party 
to  be  notified.'^ 

§  786.  Time  of  Deliverv,  and  not  of  Sending.  —  As  between 
parties  residing  or  carrying  on  business  in  the  same  place,  the 
time  of  giving  notice  relates  to  the  day  and  the  hour  of  the 
day,  in  which  the  same  is  delivered,  and  not  to  the  day  or  hour 
of  despatching  the  messenger.  It  would  not,  therefore,  be 
considered  as  a  sufficient  compliance  with  the  law,  in  the 
absence  of  a  reasonable  excuse  for  delay,  where  the  message 
was  forwarded  to  a  resident  drawer  or  indorser,  on  the  da}"  fol- 
lowing the  day  of  dishonor,  if  such  message  was  not  delivered 
until  the  next  succeeding  day,^  except  where  service  between 
such  parties  may  be  by  mail.'* 

'  Hartley  v.  Case,  1  Car.  &  P.,  555. 

«Tindal  v.  Brown,  1  T.  R.,  1G7. 

'Ireland  v.  Kip,  11  Johns.,  231;  Williams  v.  Bank  of  U.  S.,  2  Peters,  100; 
Smedes  ?).  Utica  Bank,  20  Johns.,  372;  Cabot  Bank  i\  Warner,  10  AHen^ 
522;  Grinman  v.  Walker,  9  Ih.,  42G. 

*  See  Post  §  809  et  seq.  Where  the  postal  deliver}-  sj-stem  is  held  to  obviate 
the  necessity  of  personal  service  of  notice  between  residents  of  the  same  place. 


TIME    OF    GIVING    NOTICE.  355 

§  787.  At  Place  of  Business,  or  Residence.  —  One  ot  the  cir- 
cumstances affecting  the  service  of  notice  between  residents  of 
the  same  citj^,  town,  or  village,  with  respect  to  the  time  of  ser- 
vice, when  the  mode  is  by  leaving  the  notice  with  some  one 
other  than  the  party  to  be  notified,  is  the  icilace  where  such 
notice  is  left.  Though  the  holder  of  the  instrument  may,  at 
his  option,  leave  the  notice  at  the  residence  or  place  of  busi- 
ness of  the  drawer  or  indorser,^  the  hours  of  the  day  within 
which  such  notice  may  be  effectually  served  at  these  two  places 
are  essentially  different. 

§  788.  Hours  at  Place  of  Business.  —  Where  the  notice  is  served 
upon  a  party  to  a  bill  or  note,  by  leaving  it  at  the  place  of 
business  of  such  party,  with  some  one  other  than  the  one  for 
whom  it  is  intended,  it  must  be  so  left  during  the  ordinary 
business  hours  of  the  day,^ 

§789.  Hours  at  Place  of  Residence. — Where,  on  the  other 
hand,  the  holder  or  his  agent  serves  the  notice  by  leaving  it  at 
the  residence  of  the  party,  it  may  be  at  any  time  before  the 
usual  liour  of  retiring  for  the  niglit.^ 

§790.  Nine  O'clock  P.  31.  —  It  was  accordingly  held,  in  one 
instance,  that  a  party  who  had  received  notice  of  the  dishonor 
of  a  note  indorsed  by  him,  might  notity  an  antecedent  indorser 
by  leaving  the  notice  for  him,  at  his  place  of  residence,  at  nine 
o'clock  of  the  night  of  the  day  following  that  upon  which  he 
himself  received  notice  of  tlie  default  of  payment.* 

§  791.  When  Left  on  Day  of  Dishonor.  —  Nevertheless,  a  notice 
left  at  the  residence  of  the  party  on  the  night  of  the  day  of 
dishonor,  or  even  given  by  an  indorser,  the  day  when  he 
received  notice,  too  late  to  operate  as  notice  for  that  day,  would 
be  a  good  and  sufficient  notice  for  the  following  day,  and  so  be 
in  time  to  bind  the  party  notified,  if  otherwise  properly  served.^ 

'  See  Post  %  808. 

'^Adiims  V.  Wright,  14  Wis.,  408;    Cayuga  Couuty   Baulv   v.  Huut,  3 
Hill,  0:35. 
^Adams  v.  Wright,  14  Wi«.,  408. 
*. Jameson  ».  Swiiiton,  2  Taunt.,  224. 
'  See  i^  839. 


353  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

§  792.  Parties  Resident  in  Different  Places.  —  When  the  party 
giving  the  notice  and  the  party  notified  reside  in  different 
places, — that  is  to  say  witliin  or  near  different  cities,  towns  or 
villages,  so  that  they  are  accustomed  to  resort  to  different  post- 
offices  for  their  letters,  or  where  their  residences  are  too  far 
apart  to  render  personal  service,  or  its  legal  equivalent,  practic- 
able,— the  most  important  circumstance  affecting  the  time  of 
giving  notice,  is  the  means  of  communication   between  them. 

§  793.  By  3Iail,  Time  of  Depositing  Letter.  —  For  the  purpose 
of  giving  notice  of  the  non-acceptance  or  non-payment  of  nego- 
tiable paper  to  non-residents,  the  means  of  communication 
most  favored,  is  the  public  post.  Where  the  notice  is  inclosed 
in  a  letter  and  sent  through  the  mails,  the  question  of  diligence 
is  considered  with  reference  to  the  time  of  depositing  the  let- 
ter in  the  postoffice  and  not  the  date  of  its  receipt  by  the 
party  to  whom  it  is  addressed.^ 

§  794:.  General  Constrnetion  of  Reasonable  Time.  —  So  long  as 
the  courts  had  no  rule  as  to  the  time  of  giving  notice,  bcN'ond 
the  requirement  that  it  should  be  reasonable^  they,  as  well  as 
the  business  public,  were  subject  to  no  little  embarrassment  in 
settling  upon  a  construction  of  this  vague  and  uncertain  limi- 
tation. To  leave  this  as  a  simple  question  of  fact  to  the  jury, 
did  not  have  a  tendency  to  tlio  promotion  of  certainty  in 
results.  It  was  found  also,  that  to  require  notice  "  as  soon 
after  the  dishonor  of  the  instrument  as  practicable,"  accord- 
ing to  the  doctrine  of  some  of  the  earlier  cases,  would  have  a 
tendency  to  compel  unreasonable  haste,  and  thus  enhance  the 
risk  of  fatal  mistakes ,  to  force  the  holder  to  neglect  all  other 
business  so  as  to  bestow  his  entire  attention  upon  the  giving 
of  the  notice,  and  that  the  inquiry  into  all  the  circumstances 
by  which  the  notice  might  have  been  delayed  for  a  few  hours, 
would  involve  the  rendering  of  too  nice  and  exact  an  account, 
by  the  one  giving  the  notice,  of  the  manner  in  which  his  time 
had  been  disposed  of  between  the  dishonor  of  the  paper,  or 
the  receipt  of  the  notice  by  him,  and  the  sending  or  delivery 

'  See  cases  cited,  Infra  §  821. 


TIME    OF    GIVING    NOTICE.  357 

of  the  notice  to  the  antecedent  party.  Hence,  for  the  purpose 
of  promoting  certainty  and  safety  in  dealings  in  negotiable 
securities,  it  was  deemed  necessary  to  give  the  term  rcasonahle, 
as  applied  to  notices  of  this  sort,  a  legal  construction.  It  was 
accordingly  held,  and  has  now  become  a  settled  rule  of  the 
law  merchant,  that  in  no  instance  shall  the  notice  be  required 
to  be  given  on  the  day  of  the  demand  and  default  of  payment; 
but  it  shall  be  sufficient,  if  given  or  sent  on  the  next  succeed- 
ing day  thereafter} 

§  Y95.  Each  Party  has  liis  Day.  —  This  rule  has  been  extended 
so  as  to  give  indorsers  ,who  receive  notice  the  same  advantages 
as  to  time  for  transmitting  it  to  antecedent  parties,  as  are 
enjoyed  by  the  holder,  so  that  each  party  has  liis  day  in 
which  to  give  notice  to  antecedent  parties,  which,  in  case  of 
an  indorser,  means  the  day  following  that  on  which  he  receives 
notice,  whatever  be  the  lapse  of  time  between  the  date  of  dis- 
honor and  the  receipt  of  the  notice  from  the  party  subsequent 
to  liim.^ 

§  796.  Statement  of  Lord  EUenborough.  —  This  rule  and  the 
reason  upon  which  it  is  founded  is  given  by  Lord  Ellenboeough 
in  the  case  of  Bray  v.  Hadwen,^  in  the  following  language: 
"It  has  been  laid  down,  I  believe,  since  the  case  of  Darbi- 
shire  v.  Parker,  as  a  rule  of  practice,  that  each  party  into 
whose  hands  a  dishonored  bill  may  pass,  should  be  allowed 
one  entire  day  for  the  purpose  of  giving  notice.  A  different 
rule  would  subject  every  party  to  the  inconvenience  of  giving 

'  Chick  t).  Pillsbury,  34  Me.,  458;  Maacliester  Bank  v.  Fellows,  28  N.  H., 
302;  Grand  Bank  d.  Blanchard,  23  Pick.,  305;  Whitvvell  «.  Johnson,  17 
Mass.,  449;  Carmena  v.  Bank  of  La.,  1  La.  An.,  3(59;  Blaoknian  v.  Leonard, 
15  La.  An.,  59;  Neal  v.  Taylor,  9  Bush.,  380;  Whitlcsey  v.  Dean,  2  Aikeiis, 
263;  Liingdale  v.  Trimmer,  15  East,  291;  Darhlshire  ».  Parker,  G  East,  3; 
Bartlett  v.  Ilawley,  120  Mass.,  92. 

'United  States  Bank  n.  Goddard,  5  Mason,  3(i');  Sussex  Bank  v.  Baldwin, 
17  N.  .1.  L.,  487;  Carter  v.  Burley,  9  N.  H.,  558;  Howard  v.  lv(  s,  1  Hill, 
263;  Hartford  Bank  v.  Stedman,  3  Conn.,  489;  Dobree  v.  Eastwood,  3  Carr. 
&  P.,  250;  Turner  v.  Leech,  4  B.  &  Aid.,  451 ;  Rowe  v.  Tipper,  20  Eng.  L.  & 
Eq.,  220:3  Kent  Com.,  106. 

3  5Maule&  Scl., -a 


3oS  NOTICE    OF    DISHONOR    OF    COMMERCIAL    TAPER. 

an  account  of  all  his  other  engagements,  in  order  to  pi-ove  tliat 
he  could  not  reasonably  be  expected  to  send  notice  by  the  same 
day's  post  which  brought  it.  ******  It  has 
moreover  this  advantage,  that  it  excludes  all  discussion  as  to 
the  particular  occupations  of  the  party  on  that  day." 

§797.  The  Day  of  one  Party  not  for  the  Benefit  of  Another. — 
Nevertheless,  it  should  be  borne  in  mind  tliat  the  day  to  which 
one  party  is  entitled  within  which  to  prepare  and  forward  his 
notice  to  prior  parties,  cannot  be  availed  of  by  a  subsequent 
party  to  prolong  the  time  within  wliich  he  may  notify  tlie 
more  remote  party.^  This  principle  is  illustrated  by  the  case 
of  Rowe  V.  Tipper.'^  There  the  note  was  dishonored  on  Satur- 
day, and  notice  was  given  by  the  holder  to  his  immediate 
indorser  on  the  Monday  following.  The  party  so  notified 
might  have  bound  the  next  antecedent  indorser  by  notice  on 
Tuesday,  but  failed  to  do  so,  and  the  holder  undertook  to  supply 
the  omission  by  giving  notice  on  that  day,  which  was  two  daj-s 
after  the  date  of  demand  and  non-payment, to  such  antecedent 
indorser.  The  last  notice  was  held  too  late,  for  the  reason,  as 
expressed  in  the  opinion  of  the  court  delivered  on  that  occasion, 
that  "if  the  holder  seeks  to  avail  himself  of  notice  of  dis- 
honor given  by  him  to  remote  indorsers,  it  must  be  given 
within  the  time  he  should  have  given  notice  to  his  own  im- 
mediate indorser."^ 

§  798.  Consequence  of  Numerous  Parties  taking  a  Day.  —  The 
application  of  this  rule  where  the  dishonored  instrument  bears 
numerous  indorsements  might  result  in  greatly  prolonging  the 
time  from  the  date  of  dishonor  until  the  first  indorser  or  the 

'Manchester  Bank  v.  Fellows,  28  N.  H.,  303;  Brown  ».  Furguson,  4 
Leigh,  37;  Turner  b.  Leech,  4  B.  &  Aid.,  451. 

''■  iSupra. 

^  A.  dictum  in  the  case  of  Etting  v.  Schuylkill  Bank  (2  Ponn.  St.,  355) 
lays  down  the  general  rule  that  when  notice  "  is  given  by  the  holder  direcl;- 
ly,  it  is  soon  enough,  if  it  reach  the  i)articular  indorser  as  soon  as  it  would 
have  reached  him  circuitously  through  Ih?  subsequent  indorsers,  each  of 
whom  are  entitled  to  an  entire  day,  if  he  choose  to  insist  on  it,  to  hand  it 
on."  This  singular  misinterpretation  of  the  autlioritius,  however,  has  no 
following. 


TIME    OF    GIVING    NOTICE.  359 

drawer  was  notified  of  the  fixing  of  his  liability.  Should  each 
successive  indorser  avail  liimself  of  the  day  allowed  him  for 
the  purpose  of  preparing  and  forwarding  the  notice,  and  should 
be  content  to  give  the  notice  to  his  immediate  indorser,  leaving 
the  latter  to  notify  the  parties  antecedently  liable,  the  time 
thus  consumed,  when  taken  together  with  the  necessary  time 
for  transportation  might,  from  days,  grow  into  weeks  or  even 
months,  before  the  notice  reached  the  party  last  entitled  there- 
to. Notwithstanding  the  circuitous  course  taken  by  the  notice, 
in  a  case  of  this  kind,  and  although  it  might  have  been  given 
in  a  much  shorter  time  by  the  holder  directl^^  to  the  drawer 
or  first  indorser,  it  will  be  none  the  less  binding  on  account  of 
the  delay.  ^ 

§  799.  Time  not  always  Measured  by  Nnniber  of  Parties.  —  When 
a  notice  is  thus  sent  to  each  party  in  succession,  and  any  one 
or  more  of  such  parties  sends  or  delivers  the  notice  to  those 
who  are  antecedent  to  him,  on  the  same  day  he  receives  it, 
this  will  shorten  the  time  for  the  drawer  or  first  indorser; 
because  no  antecedent  party  will  be  permitted  to  take  advan- 
tage of  the  time  thus  gained.^  The  number  of  days,  tlierefore 
intervening  between  the  dishonor  of  commercial  paper,  and  no- 
tice to  the  drawer  or  first  indorser,  may  not  always  be  measured 
by  the  number  of  indorsers  even  where  there  are  no  unusual 
or  unexpected  obstructions  to  the  transmission  of  the  notice 
from  one  to  another. 

§  800.  Difficulties  in  Applying  the  Rule.  —  In  applying  the  rule 
giving  the  holder  or  indorser  until  the  day  after  dishonor  to 
notify  prior  parties,  com  para  tivel}'  little  difticulty  has  been 
experienced  where  the  parties  between  whom  the  notice  passed 
were  residents  of  the  same  place.  But  when  the  situation  of 
the  parties  rendered  the  mail  the  most  convenient  mode  of 
communication,  the  question  has  been  involved  in  some  diffi- 
culty. 

'  Smith  V.  Roach,  7  B.  Mon.,  17 ;  Whitman  v.  Farmers'  Bank,  8  Port.  Ala., 
2r)8;  Fitc'hburg  Bank  v   Perley,  2  Allen,  4:33. 
'■'Simpson  v.  Tf;rney,  5  Hump.,  419;  Marsh  v.  Maxwell,  2  Camp.,  210,  note. 


3G0  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER, 

§801.  Chitty's  Doctrine  as  to  "  Next  Day."  —  Mr.  Chittj  lays 
down  the  rule  that  "where  the  notice  is  to  be  sent  by  the 
general  post,  then  the  holder  or  party  to  give  the  notice,  must 
take  care  to  forward  notice  by  the  post  of  the  next  day,  after 
the  dishonor,  or  after  he  received  notice  of  such  dishonor, 
whether  that  post  sets  oif  from  the  place  where  he  is,  early  or 
late."i 

§  802.  Criticism  of  above  by  Story — Twenty-four  Hours.  —  Judge 
Story,  however,  holds  the  rule  to  be  less  strict  than  as  laid 
down  by  Mr.  Chitty,  and  expresses  his  views  of  the  doctrine 
as  follows:  "  It  would  be  more  correct  to  say  that  the  holder 
is  entitled  to  one  whole  day  to  prepare  his  notice,  and  that 
therefore  it  will  be  sufficient  if  he  send  it  by  the  next  post 
that  goes  after  twenty-four  hours  from  the  time  of  the  dis- 
honor. Thus,  suppose  the  dishonor  is  at  four  o'clock  P.  M., 
on  Monday,  and  the  post  leaves  on  Tuesday  at  nine  or  ten 
o'clock,  it  seems  to  me  that  the  holder  need  not  send  by  that 
post,  but  may  safely  wait  and  put  the  notice  into  the  postoffice 
early  enough  to  go  by  the  post  on  Wednesday  morning  at  the 
same  hour."^ 

§  803.  Impracticability  of  Chitty's  Rule.  —  A  strict  adhesion  to 
the  rule  laid  down  by  Mr.  Chitty,  instead  of  affording  the 
holder  or  party  giving  tlie  notice  a  reasonable  time  to  prepare 
and  forward  the  same,  might  render  it  utterly  impracticable 
for  him  to  notify  prior  parties  within  the  time  thus  arbitrarily 
prescribed.  Suppose  the  notice  to  be  given  an  indorser  about 
the  last  quarter  of  his  usual  hour  of  retiring  for  the  night, 
which,  in  some  places,  would  be  at  twelve  o'clock.  Suppose 
the  lirst  mail  of  the  succeeding  day  should  leave,  in  the  early 
part  of  the  first  hour  of  the  day,  which  would  be  some  time 
previous  to  oire  o'clock,  and  might  be  but  a  few  minutes  past 
twelve.  Thus  the  time  within  which  the  indorser,  notified  at 
his  residence,  would  be  required  to  prepare  his  notice  to  ante- 
cedent parties,  and  deposit  it  in  the  postoffice,  might  be  reduced 

'  HiiUy  on  Bills,  43t  (0th  Ed  ). 

*  Story  on  Bills,  ?  2<J1  (Note) ;  /rf  ,  §  291 


TIME    OF    GIVING    NOTICE.  361 

to  a  very  few  minutes.  Lord  Ellenborough,  in  rendering  the 
opinion  of  the  court  in  Smith  v.  Mullett/  says  that  "  Each  man 
has  a  day.  If  3'ou  limit  a  man  to  the  fractional  part  of  a  day, 
it  will  come  to  a  question  how  swiftly  the  notice  can  be  con- 
veyed. A  man  and  horse  will  be  employed,  and  you  will  have 
a  race  against  time." 

§  804.  Inconvenience  of  Story's  Rule.  — On  the  other  hand,  the 
twenty-four  hour  rule  is  equally  foreign  to  the  purpose  for 
which  one  day  was  fixed  upon  as  the  proper  time  to  allow  par- 
ties within  which  to  give  such  notices.  The  object  was  to 
insure  a  reasonable  time  to  the  giver  of  the  notice,  so  that  he 
mij^ht  not  be  forced  to  nea^lect  other  business  in  order  to  attend 
to  the  matter  of  giv^ino;  the  notice.  To  follow  the  rule  allow- 
ing  twenty-four  hours  would  I'equire  the  court,  in  every 
instance,  to  engage  in  nice  computations  of  fractions  of  a  day, 
which  is  a  practice  universally  looked  upon  with  judicial  dis- 
favor.^ The  doctrine,  as  announced  by  the  learned  author,  is 
unsupported  by  authority. 

§  805.  Judicial  Construction  of  General  Rule.  —  The  construc- 
tion which  has  been  placed  upon  the  above  rule,^  by  the  best 
considered  cases,  both  in  this  country  and  Great  Britain,  is 
that  the  notice  should  be  sent  by  the  post  of  the  day  following 
that  upon  which  default  is  made,  provided  the  hour  of  depart- 
ure is  not  unreasonahly  early,  or  hefore  a  convenient  hour 
for   business ^     Should   the   only  mail  of  the  day  take  its 


'  2  Camp.,  208. 

2  2  Blackst.  Com.,  U;. 

*Lawsou  V.  Farmers' Bank,  1  Ohio  St.,  20(»;  Burgess  «.  Vreel  and,  24 
N.  J.  L.,  71 ;  Wemple  v.  Dangerficld,  2  Sm.  &  M.,  445;  Stephenson  v.  Dick- 
Bon,  24  Pa.  St.,  148;  Fullerton  v.  Bauk  of  U.  S.,  1  Pet.,  604;  Bank  of 
Alexandria  v.  S\vann,9  Pet.,  33;  Carter  v.  Burley,  9  N.  H.,  558;  Sussex  Bank 
X).  Bahhvin,  17  N.  J.  L.,  4h7;  Downs  v.  Phxnters'  Bank,  1  Sm.  &  M.,  261; 
Chick  V.  Pilshury,  24  Jle.,  458;  (overruling  Goodman  v.  Norton,  17  Mc.,  381 
and  Bcckwith  v.  Smith,  22  Td.,  125);  Davis  v.  Haule}%  12  Ark.,  645;  West  v\ 
Brown,  6  Ohio  St.,  542;  Mitchell  v.  Cross,  2  K.  I.,  437;  Hawks  v.  Salter,  4 
Bing.,  715;  Geill  v.  Jeremy,  22  Eng.  C.  L.,  249;  Williams  v.  Smith,  2  B.  cSj 
AldT,  406. 


3G2  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

departure  at  an  hour  in  tlie  morning  too  early  for  business 
purposes,  then  it  would  be  sufficient  if  posted  in  time  for  the 
out-going  mail  of  the  next  succeeding  day. 

§  80G.  Unreasonably  Early  Hour.  —  What  is  an  unreasonably 
early  hour,  to  be  required  to  attend  to  the  business  of  forward- 
ing the  notice  must  be  separately  determined  in  each  case,  by 
the  finding  of  a  court  or  jury.  The  hour  will  vary  according 
to  the  locality  and  the  circumstances  of  the  party  sending  the 
notice,  and  may  change  in  any  given  locality  as  the  customs 
and  habits  of  the  business  men  of  such  place  are  altered. 

§  807.  The  Hour  of  Closing  Mail.  —  An  instance  of  an  hour 
which  would  probably  be  regarded  as  too  early  in  any  business 
community,  will  be  found  in  the  case  of  Bank  of  Alexandria  v. 
Swann,^  where  the  mail  took  its  departure  between  the  hours  of 
twelve  o'clock  of  the  night  after  default,  and  two  o'clock  a.m.  of 
the  day  following  the  day  of  dishonor.  Of  course  the  party  from 
whom  the  notice  was  due  was  not  required  to  prepare  and  post 
the  same,  at  such  an  early  hour  as  this.  Besides,  as  in  all  proba- 
bility the  mail  departing  at  such  an  early  hour  would  be  closed 
against  the  receipt  of  letters,  previous  to  twelve  o'clock  of  the 
night  of  the  day  of  dishonor,  it  could  not  reasonably  be  called 
the  mail  of  the  next  day.^  The  case  cited,  sufficiently  illus- 
trates the  propriety  of  considering  the  day  and  hour  of  closing^ 
rather  than  that  of  the  departure  of  mails.  There  the  mail 
was  closed  at  nine  o'clock  p.  m.  of  the  day  of  dishonor,  and 
took  its  departure  at  sunrise  of  the  following  day,  and  the 
court  decided  the  mail  to  be  of  the  day  upon  which  it  was 
closed,  and  the  notice  to  an  indorser,  posted  on  the  day  follow- 
ing that  upon  which  the  note  was  dishonored,  was  held  good 
although  there  was  no  other  mail  going  in  the  direction  of  the 
indorser's  residence  until  the  second  day  thereafter. 

§  808.  Five  O'clock  too  Early.  —  It  was  also  held  in  West  v. 
Brown,^  that  five  o'clock  was  an   hour  of  the   morning    too 


'  9  Pet.,  33. 

'  Farmers'  Bank  v.  Duvall,  7  Gill  &  J.,  78. 

2  6  Ohio  St.,  543. 


TIME    OF    GIVING    NOTICE.  303 

early  for  business;  so  that  where  the  mail  departed  at  that  hour, 
a  notice  posted  at  nine  o'clock  thereafter  would  be  sufficient, 
regardless  of  the  time  of  departure  of  the  next  mail. 

§  809.  Seven  O'clock  too  Early. — In  Davis  v.  Ilanley,^  seven 
o'clock  was  the  liour  at  which  it  would  have  been  necessary  to 
post  the  notice  "if  the  first  mail  of  the  next  day"  had  been 
insisted  upon;  but  the  court  held  this  unreasonably  early  for 
business. 

§  810.  Six  O'clock  the  H;mr  of  Closing.—  So,  in  Chick  v.  Pils- 
bury,^  six  o'clock  was  the  hour  of  closing  the  mails,  and  this 
was  held  too  early  to  require  the  deposit  of  notice,  as  it  was 
earlier  than  the  business  men  of  the  community  would  be 
stirring.  This  was  decided  without  reference  to  the  hour  of 
departure. 

§  811.  Ten  Mimites  past  Nine  O'clock. —  In  Lawson  v.  Farmers' 
Bank,^  ten  minutes  past  nine  was  held  to  be  not  unreasonably 
early,  "  or  before  a  reasonable  and  convenient  time  after  the 
commencement  of  early  business  hours  of  the  day,"  in  the 
city  of  Pittsburgh,   Pennsylvania. 

§  812.  Might  be  Reasonable,  Earlier  than  Nine.  —  In  Davis  v. 
Planters'  Bank,^  the  notice  was  deposited  in  the  postoffice  at 
nine  o'clock  on  the  morning  of  the  day  next  succeeding  that 
upon  which  the  instrument  was  dishonored,  and  the  court 
held  substantially  that  this  was  insufficient  unless  it  further 
appeared  that  the  mail  left  subsequent  to  that  hour,  or,  if  prior 
thereto,  at  an  unreasonably  early  hour. 

§813.  Half-past  Nine  Held  too  Early.  —  In  Hawks  v.  Salter ,5 
however,  the  hour  of  the  mail's  going  out  was  half-past  nine 
o'clock  on  the  morning  of  the  day  the  notice  was  required  to 
be  sent.  This  was  held  too  early  for  business  men  to  attend  to 
the  posting  of  notices,  and  consequentl}^  a  notice  deposited  in 
the  receiving  office  later  in  the  day  was  held  sufficient. 

'  12  Ark.,  04o. 
2  24  Me.,  45b. 
n  Ohio  St.,  :^0G. 
*1  Sm.  &M.,  361. 
»4BiDg.,  715. 


364:  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

§  814.  Rule  Construed  by  Marshall.  —  The  principle  upon 
wliicli  the  holder  or  other  party  sending  the  notice  is  excused 
from  posting  it  at  a  very  early  hour,  is  generally  regarded  as 
consistent  with  some  of  the  authorities  cited,  where,  as  in 
Lenox  v.  Eoberts,^  it  is  held  by  Chief  Justice  Marshall,  that 
"  a  demand  of  payment  should  be  made  upon  the  last  day  of 
grace,  and  notice  of  the  default  of  the  maker  be  put  into  the 
postoffice  early  enough  to  be  sent  by  the  mail  of  the  succeeding 
day."  The  proviso  that  the  mail  closes  at  a  reasonably  early 
l^.our,  is  added  as  a  rational  explanation  of  the  meaning  of"  the 
mail  of  the  succeeding  da}-,"  so  as  to  render  the  rule  applicable 
to  cases  where  there  is  but  one  mail  on  such  day,  and  there  is 
a  question  whether  with  reasonable  diligence  the  notice  might 
have  been  sent  by  that.^ 

§815.  Not  Necessary  to  be  sent  by  First  Mail. — It  has  been 
contended,  as  we  have  noticedj  that  in  order  to  charge  drawers 
and  indorsers  of  commercial  paper,  with  notice  sent  through 
the  mails,  it  is  essential  that  the  notice  should  go  by  the  first 
mail  of  the  day  succeeding  the  day  of  maturity  and  demand;* 
but  whatever  difference  of  opinion  there  may  have  existed  at 
one  time  upon  this  question,  it  may  now  be  regarded  as  fully 
settled  by  authority,  that  where  two  or  more  mails  take  their 
departure  on  the  day  succeeding  the  day  of  dishonor,  to  the 
place  where  the  party  to  whom  the  notice  is  addressed  has  his 
residence,  notice  sent  Ijy  either  of  such  mails  vyiJl  he  sufficient> 

§816.  Mere  Formal  Compliance  with  Rule  not  Required. —  And 
where  there  is  no  regular  outgoing  mail  on  the  next  day  after 
the  dishonor,  which  leaves  at  a  reasonable  hour  for  business, 
the  notice  will  be  sufficient  if  deposited  in  time  for  the  next 
regular  mail  that  goes  in  the  required  direction,  regardless  of 
the  number  of  days  that  may  intervene  between   the  dislionor 


»  2  Wheat.,  373. 
2  Supra. 

^ChiUy  on  Bills,  485  (11th  Am.  from  9th  Loud.  Ed),  and  cases  cited. 
*  Carter  v.  Burley,  9  N.  H.,  558;  Whitwell  u.  John^ou,  IT  ihus.,  4W;  Allen 
p.  Avery,  47  Me.,  287. 


TIME   OF   GIVING   NOTICE.  365 

of  the  bill  or  note,  and  the  departure  of  the  mail  by  which 
notice  of  non-payment  is  conveyed  to  the  party  to  be  charged.'^ 
The  law  does  not  exact  a  mere  formal  compliance,  which  must 
necessarily  prov^e  fruitless  of  results.  The  notice  might  as 
well  be  lying  in  the  private  desk  of  the  holder,  as  in  the  post- 
office  awaiting  the  time  for  the  departure  of  the  mail. 

§  817.  Agents  or  Attorneys  have  their  Day.  —  When  it  is  said 
that  a  holder  or  indorser  is  entitled  to  a  day,  within  which  to 
prepare  and  post  the  notice  to  non-residents,  or  to  serve  notice 
upon  prior  parties  who  reside  in  the  same  place,  it  will  be 
understood  that  this  applies  as  well  to  agents  or  attorneys  who 
merely  hold  or  indorse  the  paper,  to  facilitate  collection,  as  to 
holders  and  indorsers  for  value. ^ 

§  818.  Must  be  Secular  Day.  —  The  statement  that  the  holder 
or  indorser  who  has  received  notice  must  send  or  deliver  the 
notice,  according  to  the  relative  situation  of  the  parties,  on  the 
day  succeeding  that  upon  which  the  note  or  bill  was  dishon- 
ored, or  notice  thereof  was  received  by  the  indorser,  must  be 
accepted  with  the  qualification  that  where  either  the  day  upon 
which  the  notice  is  received,  or  the  day  succeeding  the  date  of 
dishonor  or  receipt  of  notice,  is  a  public  holiday,  or  a  day  set 
apart  by  the  religious  denomination  to  which  the  party  charged 
with  the  duty  of  giving  the  notice  belongs,  as  a  religious  fes- 
tival, or  as  sacred  from  secular  affairs,  such  da^'  will  not  be 
computed  as  forming  any  part  of  the  time  within  which  the 
party  is  required  to  attend  to  the  giving  or  sending  of  the 
notice.^ 

§819.  Jewish  Festival. —  So  where  the  day  following  that 
upon  which  an  indorser,  who  was  a  Jew,  received  notice,  was 
set  apart  as  a  Jewish  festival,  upon  which  it  was  held,  by  those 
of  that  faith,  unlawful  to  attend  to  their  secular  affairs,  it  was 

>  Montelius  v.  Cliarles,  7G  111.,  303 ;  Geill  v.  Jeremy,  22  Ei^g.  C.  L.,  249 ;  S.  C, 
1  M.  &  M.,  Gl. 

^Sussex  Bank  -o.  Baldwin,  17  N.  J.  L.,  487;  Firth  r.  Tiirush,  15  Eng.  C. 
L.,  242;  Robson  ij.  Bennett,  2  Taunt.,  388;  itaynes  ».  B:rk<!,  3  Bjs.  <fc  P., 
599  i  Langdale  v.  Trimmer,  15  East,  291 ;    Daly  v.  Slatter,  4  Car.  &  P.,  200. 

^Howard  v.  Ives,  1  Hill,  203;  Hartford  Bank  v.  Stedman,  3  Conn.,  4-59. 


3GG         Notice  of  dishonor  of  commercial  paper. 

held  that  the  commercial  h\w  had  such  regard  for  the  con- 
sciences of  men,  of  whatever  religious  persuasion  or  belief, 
that  in  this  instance  the  party  would  not  be  requii'ed  to  send 
the  notice  during  the  continuance  of  sucli  festival,  but  it  would 
I  e  regarded  as  sufficient  if  sent  on  the  day  following  that  held 
sacred  to  religious  observances.  ^ 

§820.  Sunday.  —  So,  also,  where  notice  of  default  in  pay- 
ment of  a  note,  indorsed  by  the  party  receiving  it,  came  to  his 
hands,  inclosed  in  a  letter,  on  Sunday,  he  was  not  bound  to 
open  the  letter  until  Monday,  and  was  entitled  to  treat  the 
notice  as  though  it  were  received  on  Monday,  and  it  was  held 
that  notice  sent  by  him  on  the  following  Tuesday  would  be  in 
sufficient  time  to  bind  the  prior  party  to  wdioni  it  was  ad- 
dressed.^ 

§821.  Time  Refers  to  Hour  of  3Iailing.  —  When  the  service  of 
PiOtice  is  by  mail,  the  thne  has  reference  to  the  day  when  it  is 
deposited  in  the  postoffice,  and  not  the  date  of  its  receipt  by 
the  party  to  be  charged.  When  the  party  sending  the  notice 
has  deposited  the  same  in  the  office,  properly  addressed  to  the 
prior  party,  he  has  performed  his  entire  dutj',  so  far  as  that 
particular  party  is  concerned.  It  is  of  no  consequence  to  him 
what  accidents  or  delays  intervene  to  prevent  the  party  from 
receiving  the  notice  seasonably,  or  from  receiving  it  at  all. 
Having  no  control  over  the  postoffice  department,  or  any  of 
its  officers  or  employes,  he  is  not  responsible  for  any  act  of 
negligence  on  their  part,  by  which  prior  parties  to  the  instru- 
ment are  prevented  from  receiving  notice  in  due  tirae.^ 

§  822.  Law  of  Place  of  Contract  Governs.  —  Although  the  regu- 
larity of  the  protest  of  a  foreign  bill  of  exchange,  is  governed 
by  the  law  of  the  place  of  acceptance   and  payment,  what- 

Lindo  V.  Unswortli,  2  Camp.,  603;  Farmers'  Bank  v.  Yail,  21  N.  Y.,  483; 
Hallowell  v.  Carry,  41  Perm.  St.,  322. 

^  Crawford  v.  Milligan,  2  Cranch  C.  C,  226;  McElroy  v.  English,  Id.,  528. 

'  Jones  V.  Warden,  6  W.  &  S.,  899 ;  Mt.  Vernon  Bank  v.  Holdcn,  2  R.  I., 
467;  Nevirs  v.  Bank,  10  Mich.,  547;  Marshall  v.  Baker,  3  Minn.,  320;  Loud 
V.  Merrill,  45  Me.,  516  ;  Harris  v.  Robinson,  4  How.,  336;  Bank  v.  King, 
14  X.  J.  L,  45 ;  Woodcock  v.  Houldsworth,  16  M.  &  W.,  124. 


TIMK    OF    GIVIXG    NOTICK.  367 

ever  affects  the  sufficiency  of  the  notice  of  dishonor  of  nego- 
tiable securities  of  any  kind,  must  be  determined  by  the  law 
of  the  place  where  the  contract  is  made.  That  is,  where 
the  question  is  the  sufficiency  of  notice  to  the  indorser,  it 
must  be  solved  according  to  the  laws  and  customs  of  the  place 
where  the  contract  of  indorsement  was  entered  into ;  and 
where  the  drawer  is  the  party  to  be  notified,  by  the  law  of  the 
place  where  the  bill  was  drawn.^ 

§  823.  Consequence  of  Adopting  Umisual  Modes.  —  Where  the 
party  giving  the  notice,  and  he  to  whom  it  is  given  reside  in 
diflferent  places,  so  that  the  manner  of  communicating  between 
them  is  generally  through  the  postoffice,  this  is  not  to  be 
understood  as  the  exclusive  medium  which  may  be  employed. 
Notice  of  dishonor  may  be  sent  by  express,  or  by  the  hands  of 
any  common  carrier,  or  a  private  messenger  may  be  employed 
to  carry  the  same,  whatever  be  the  distance  the  parties  may 
live  apart.  But  where  there  may  be  communication  by  mail, 
the  adoption  of  other  means  shifts  the  time,  to  be  considered 
in  arriving  at  a  determination  of  the  question  of  diligence 
on  the  part  of  the  one  giving  tlie  notice,  from  the  day  of  send- 
ing to  the  day  of  receivlnfj  the  notice.  In  other  words,  by 
the  adoption  of  other  modes,  the  party  assumes  all  the  risks 
of  delay  in  transportation,  and  will  not  only  be  required  to 
show  diligence  in  his  messenger  or  carrier,  but  must  further 
establish  that  the  notice  reached  the  party  to  be  charged  on 
the  same  day  it  would  have  come  to  hand  had  it  been  sent  by 
mail;  but  it  need  not  appear  that  it  was  delivered  at  the  same 
hour  of  the  day,  it  would  have  arrived  by  the  mail.^ 

§  824.  Question  of  Law  and  Fact. —  The  rule  giving  to  holders 
and  indorsers  one  day  within  which  to  send  notice  to  prior 
parties,  as  hereinbefore  explained,  should  be  understood  as  a 

'  AYallace  y.  Agr^^,  4  Mason,  300;  Amyr.  v.  Sheldon,  13  Wend.,  439;  Hyatt 
t).  Bank  of  Ky.,  8  Bush.,  193;  Chick  y.  Pillsbury,  24  Me  ,  458;  Whitwell  «. 
Johnson,  17  Mass.,  449 ;  Bank  of  Alexandria  v.  Svvann,  9  Pet.,  33 ;  Hawks  ■n. 
Salter,  4  Bing ,  715. 

"Spalding  v.  Krutz,  1  Dill,  C.  C,  414;  Bancroft  ».  Hall,  1  Holt,  476; 
Pearson  v.  Crallan,  2  Smith,  404. 


368  NOTICE    OF    DISHONOR    OF    COMMERCIAL    TAPER. 

rule  of  eiilari^eraent,  rather  than  of  limitation  of  the  time 
within  which  notice  should  be  given.  The  principles  upon 
which  the  rule  is  founded,  as  well  as  the  occasion  for  its  estab- 
lishment, seem  to  place  it  clearly  in  this  light.  It  does  not 
import  that  one  who  fails  to  send  or  give  notice  within  the 
time  fixed  by  the  rule,  is  necessarily  guilty  of  negligence.  It 
does  declare  that  any  one  who  sends  or  delivers  the  notice 
within  the  time  allowed,  shall  not  be  treated  as  negligent, 
merely  because  he  might,  by  excessive  diligence  have  given 
or  sent  the  notice  sooner.  This  rule  only  becomes  restrictive 
upon  those  from  whom  notice  is  due,  when  they  can  show 
neither  a  waiver  of  the  delay  by  those  entitled  to  notice,  nor 
a  reasonable  excuse  for  not  notifying  the  antecedent  parties  on 
the  day  following  that  of  dishonor.  In  other  words,  when  the 
one-da}'-  rule  of  diligence  is  observed,  the  question  of  reasona- 
bleness of  the  time  consumed,  is  one  purely  of  law}  Whereas, 
when  the  sender  of  the  notice  indulges  himself  beyond  this, 
it  becomes  a  mixed  question  of  law  and  fact.'^  The  facts  being 
acertained,  whether  the  notice  was  in  a  reasonable  time, 
becomes  a  question  of  law.^ 

§  825.  Waiver  and  Excuse.  —  The  circumstances  properly  sub- 
missiblc  to  the  jury  under  the  instructions  of  the  court,  which 
go  to  establish  either  a  waiver  of  the  objections  as  to  time,  or 
to  excuse  delay  beyond  the  day  allowed  by  law,  are  exceedingly 
various  in  their  character,  and,  for  the  purpose  of  avoiding 
useless  repetition,  have  been  reserved  for  separate  treatment 
in  a  subsequent  part  of  this  chapter.* 

§  826.  Deductions  from  Authorities  Cited.  —  The  reader  who 
has  followed  the  current  of  authorities  on  this  branch  of  our 
subject,  has  probably  discovered  that  although  there  is  no  rule 
as  to  time,  applicable  to  alh  cases,  more  definite  than  the 
requirement  that  the  notice  must  be  within  a  reasonable  time, 
Btill  there  are  a  number  of  rules  by  which  the  term  "  reasonable^^ 

>  Bray  v.  Hadwen,  5  M.  &  S.,  68. 
2  Williams  v.  Smith,  2  B.  it  Aid  ,  496. 
^  Darbisbire  v.  Parker,  6  East,  3. 
*See  Poit  v.,  Waiver  and  Excuse. 


TIME   OF   GIVING    NOTICE.  369 

is  clearly  defined,  in  its  application  to  cases  of  different  classes. 
Each  class  furnishes  its  own  rule,  and  notwithstanding  the 
conservative  inclination  of  the  courts,  these  rules  have  been 
allowed  to  grow  until  they  have  become  as  thoroughly  incor- 
porated into  the  law-merchant,  as  any  other  portion  of  this 
important  branch  of  our  jurisprudence. 

§  827.  No  Exceptions  to  Rule  Requiring  Notice  in  Reasonable 
Time.  —  It  cannot  fairly  be  said  in  cases  where  notice  within 
the  time  is  either  waived  or  excused,  tliat  they  furnish  excep- 
tions to  the  rule.  The  general  rule  under  which  they  are 
associated  with  the  cases  in  conformity  with  the  particular 
rule  allowing  but  one  day  for  notice,  is  that  which  requires 
notice  in  a  reasonable  time.  To  this  rule  there  are  no  excep- 
tions. ISTotice  is  never  required  to  be  given  or  sent  on  the  day 
following  the  day  of  default,  when  such  requirement  would  be 
unreasonable.  The  instances  in  which  notice  within  the  time 
mentioned,  is  either  waived  or  excused,  do  not  come  within 
the  more  restricted  rule. 
24 


370  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 


lY.  Manner  and  Mode  of  Giving  Notice. 


5828.  Division  of  Subject. 

829.  Where  and  how  Served,  if  duly  Received. 

830.  Illustration  of  Above. 

831.  Wliether  Written  or  Oral. 

832.  Verbal  Notice  Delivered  to  Wife. 

833.  Should  be  Written  to  Distant  Parties. 

834.  Form  and  Contents. 

835.  No  Form  Prescribed . 

836.  Immaterial  Omissions. 

837.  Date  of  Maturity  held  Immaterial. 

838.  Omission  of  Name  of  Payee. 

839.  Clerical  Error  will  not  Always  Vitiate. 

840.  Mere  Ambiguities  not  Fatal. 

841.  Must  show  Presentment  on  Business  Day. 

842.  Signed  by  one  having  Authority. 

843.  Where  and  How  Served. 

844.  Parties  Eesiding  in  Same  Place. 

845.  Indorser  Temporarily  Absent. 

846.  What  Constitutes  Place  of  Business. 

847.  Where  Residence  Known. 

848.  By  Post,  Delivery  must  be  Proved . 

849.  Different  Meaning  of  the  word  Town. 

850.  By  Post,  between  Different  Villages  in  same  Town. 

851.  Leaving  at  Place  of  Residence  or  Business. 

852.  Residence  in  one  Place,  Business  in  Another. 

853.  "Place  of  Business"'  and  "Residence"  and  what  amounts  to  leav- 

ing Notice  at  Either. 

854.  Residence. 

855.  Need  not  be  Domicile. 

856.  Leaving  Notice  at  Residence. 

857.  Leaving  at  Boarding  House. 

858.  Leaving  at  Counting  House  with  Pretended  Agent. 

859.  Will  not  Suffice  to  Leave  Near  the  Place. 

860.  Illustration  of  Same  Principle. 

861.  Corresponding  Number  not  Sufficient  to  Identify. 

862.  Several  Places  of  Business,  Either  will  Suffice. 

863.  Holder  may  Elect  between  Place  of  Business  and  Residence. 

864.  May  be  Left  when  no  one  there  to  Receive  It. 


MANNER    AND    MODE.  371 

865.  At  Business  Place  must  be  to  Proprietor. 
8C6.  Office  of  Directors  of  Corporation. 

867.  Case  Distinguished  from  Above. 

868.  Diflterence  iu  Time  at  Residence  or  Business  Place. 

869.  By  Mail  belweeu  Residents  of  Same  Place. 

870.  Letter  Cai*riers. 

871.  Drop  Letters  Required  to  be  Stamped. 

872.  Penny  Post. 

873.  Baltimore  and  other  large  Cities. 

874.  Established  Custom  of  Bank. 

875.  May  be  sent  by  Post  when  Authorized  by  Indorser. 

876.  Parties  Living  near  Place  of  Dishonor. 

877.  Illustration  of  Same. 

878.  Partners — One  Resident,  one  Non-resident. 

879.  Case  Requiring  Personal  Notice  to  Country  Indorser. 

880.  Indorser  Three  Miles  Distant. 

881.  Party  Residing  at  a  Great  Distance  from  Postofflce. 

882.  Parties  Residing  near  Different  Post  Towns. 

883.  Office  to  which  Party  usually  Resorts. 

884.  General  Adoption  of  Service  by  Mail. 

885.  Exceptional  Case. 

886.  Necessity  of  a  Rule. 

887.  Different  Offices  in  Same  Town 

888.  General  Direction  to  Town  prima  facie  Sufficient. 

889.  Private  Messenger. 

890.  Address  to  Residence  or  Business  Place  when  Known. 

891.  Must  be  Addressed  to  Place  of  Residence. 

892.  Indorser  may  be  Notified  at  Place  he  Pretends  to  Reside. 

893.  Exception  to  Cases  where  Mail  most  Convenient  Mode. 

894.  When  Holder  may  choose  between  Places. 

895.  Illustration  of  Above. 

896.  Contra. 

897.  Distance  made  the  Governing  Fact. 

898.  Criticism  of  Foregoing — True  Rule. 

899.  To  Principal  Office  of  Parish. 

900.  To  County  Seat. 

901.  To  Principal  Office  of  Town. 

902.  Should  be  Iniiuiry  Made. 

903.  Proper  Inquiry  for  Residence  in  Another  Town. 

904.  Sufficient  Inf^uiry  Question  for  Jury. 

905.  Transient  Indorser. 

906.  Temporary  Abode  not  Residence. 

907.  Member  of  Congress. 

908.  Last  Known  Residence,  when  Sufficient. 

909.  Diligent  Inquiry  for  Unknown  Residence. 

910.  Inclosing  Notices  to  all  to  last  Indor.ser. 


372  NOTICE    OF    DISlIOXOli    OF    COMMERNIAL    PAPER. 

Oil.  Transitory  Place  of  Business. 

912.  By  Mail  when  Holder  and  Indorser  are  Fellow  Townsmen. 

913.  Agent  of  Holder,  to  Indorser  in  Same  Place. 

914.  Circuitous  Notice  by  Mail  between  Resident  of  Same  Place. 

915.  Designated  Place  of  Payment— Inquiry. 

916.  Put  upon  Inquiry. 

917.  Insufficient  Inquiry. 

918.  Sending  Notice  to  where  Insti-ument  Dated,  Insufficient. 

919.  Inquiry  of  Maker,  Insufficient. 

920.  Acting  on  Information  from  one  of  the  Parties  Sufficient. 

921.  Inquiry  of  Drawer. 

922.  Previously  Acquired  Knowledge. 

923.  Former  Communications. 

924.  Surname  Alone  Insufficient. 

925.  Delay  Chargeable  to  Indorser. 
92G.  Holder  Misled  by  Place  of  Date. 

927.  Address  Should  Include  Name  of  State. 

928.  When  Address  Designated  by  Indorser. 

929.  Delay  from  Sending  by  Unusual  Route. 

§  828.  Division  of  Subject.  —  In  deciding  whether  notice  of 
the  dishonor  of  negotiable  paper  has  been  given  in  a  proper 
manner  and  by  the  proper  modes,  the  questions  of  primary 
consideration  are,  1.  Whether  tlie  notice  should  be  oral  or  in 
writing  ;  2.  Its  form  and  contents ;  3.  Where  and  how  it 
should  be  served  upon  the  party  to  be  charged. 

§829.  Wliere  and  how  Served,  if  duly  Received. —  The  impor- 
tance of  the  last  mentioned  of  these  considerations  only  arises 
in  the  event  of  a  failure,  on  the  part  of  the  party  sending  or 
delivering  the  notice,  to  trace  it  to  the  person  to  be  notified. 
If  the  notice  be  full  and  accurate  enough  to  inform  the  party 
to  be  charged  of  all  the  important  particulars  connected  with 
the  dishonor  of  the  bill  or  note  ;  if  sent  or  delivered  in  the 
proper  time,  hy  the  proper  party,  and  to  the  proper  party,  and 
by  him  duly  received,  it  becomes  immaterial  whether  it  was 
personally  delivered  by  the  party  interested  in  charging  him 
with  notice,  by  a  private  messenger,  or  was  inclosed  in  a  letter 
sent  through  the  mails.  It  may  be  delivered  at  the  residence 
or  place  of  business  of  the  party  notified,  come  to  his  hand  in 
the  midst  of  a  public  gathering,  overtake  him  on  his  travels, 
or  be  handed  to  him  on  the  street,  with  equal  eifect,  provided 


MANNER    AND    MODE.  373 

the  important  fact  that  he  actually  received  it  can  be  estab- 
lished. It  is  only  when,  through  misadventure  or  accident, 
the  notice  has  failed  to  reach  the  indorser  or  drawer  sought  to 
be  charged,  in  due  time,  or  the  fact  of  its  receipt  is  difficult  to 
establish,  that  the  manner  of  service  becomes  of  any  impor- 
tance.^ 

§  830.  Illustration  of  Above.  —  So  it  has  been  held  that,  where 
a  note  was  dishonored  in  the  same  place  where  the  indorser 
resided,  and  might  have  been  personally  served  with  notice  of 
the  dishonor,  that  a  written  notice,  sent  through  the  postoffice, 
and  received  by  him  on  the  day  he  would  have  been  entitled 
to  receiv^e  it  had  it  been  personally  served,  being  in  proper 
form,  and  containing  information  of  the  dishonor,  so  expressed 
as  to  convcA-  intelligence  thereof  to  the  indorser,  was  sufficient, 
notwithstanding  the  irregularity  of  the  manner  of  sending  it.^ 

§831.  AVhether  Written,  or  by  Parol. — -For  the  purpose  of 
perpetuating  the  evidence,  and  establishing  the  fact  in  case  of 
dispute,  the  notice  should  generally  be  in  writing.  This  is 
invariably  true  of  foreign  bills,  from  the  necessity  of  the  case. 
There,  in  order  to  charge  prior  parties  with  notice,  it  becomes 
necessary  to  have  the  bill  officially  protested,  and  the  writing 
of  the  notice  follows,  almost  as  matter  of  course.  But  in  case 
of  a  negotiable  promissory  note  or  an  inland  bill  of  exchange, 
where  the  drawer  or  indorser  may  be  charged  with  notice 
without  protesting  the  paper,  there  is  a  greater  likelihood  of  a 
departure  from  the  safe  and  convenient  method  of  giving  notice 
in  writing.  And  unless  otherwise  provided  by  statute,  a  ver- 
bal notice  will  be  as  eifective  as  a  written  one,  provided  it 
conveys  the  necessary  information  between  the  proper  parties, 
within  the  prescribed  time.^ 

'  Dickens  v.  Beal,  10  Pet.,  572 ;  Bradley  v.  Davis,  26  Me.,  45 ;  Hyslop  v. 
Jones,  3  McLean,  96;  Nevius  v.  Bank  of  Lansingburg,  10  Michi.,  547; 
Smedes  v.  Utica  Bk.,  20  .Tohns.,  371. 

'  Grinman  v.  Walker,  9  Iowa,  426 ;  Sliaylor  v.  Mix,  4  Allen,  351 ;  Cabot 
Bk.  i;.  Warner,  10 /d.,  522. 

sHousego  V.  Cowne,  2  M.  &  W.,  348;  Williams  v.  Bank  of  U.  S.,  2  Peters, 
96;  Motcalf  v.  Richardson,  20  Eng.  L.  &  Eq.,  301;  Thompson  v.  Williams, 
14  Cal.,  160. 


374  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

§  832.  Verbal  Notice  Delivered  to  Wife.  —  In  the  case  of 
Housego  V.  Cowiie,  the  notice  was  less  direct  than  an  ordinary 
verbal  notice  delivered  by  the  holder  or  his  messenger  to  the 
party  to  be  charged,  because,  in  that  case,  the  communication 
was  made  to  the  wife  of  the  party.  While  the  authority  of 
this  case  may  be  doubted,  so  far  as  it  approved  of  a  notice 
delivered  by  word  of  mouth,  to  any  one  but  the  party  to  be 
charged,  still  it  seems  in  accord  with  other  authorities  in  so 
far  as  it  asserts  the  validity  of  verbal  notice  of  dishonor.'^ 

§  833.  Should  be  Written  to  Distant  Parties.  —  Where  the  party 
whose  duty  it  is  to  give  the  notice  resides  at  a  distance  from 
the  party  sought  to  be  charged,  it  is  unsafe,  extremely  incon- 
venient, and  sometimes  absolutely  impossible  to  give  the  notice 
otherwise  than  in  writing.  It  is  tmsafe  to  send  a  private  mes- 
senger where  the  notice  may  properly  be  inclosed  in  a  letter 
and  sent  by  the  post,  because  the  party  sending  the  messenger 
renders  himself  liable  for  the  consequences  of  all  the  delays 
resulting  from  the  employment  of  the  unusual  medium  of 
communication,  and  assumes  all  the  risk  of  the  notice  being 
faithfully  delivered  byliis  representative.'^  The  inconvenience 
and  additional  expense  of  sending  a  verbal  notification  when 
it  may  be  sent  through  the  post,  is  so  manifest  as  not  to  require 
illustration.  It  becomes  wripossihle  to  give  sufficient  notice 
verbally  when,  from  the  peculiar  situation  of  the  parties,  and 
the  means  of  travel  between  them,  to  undertake  to  make  oral 
communication  of  the  fact  of  dishonor,  or  to  send  a  private 
messenger  for  that  purpose,  would  involve  material  delay 
])eyond  the  time  within  which  the  notice  would  reach  the  party 
by  the  post.^ 

§834.  Form  and  Contents.  —  As  to  the  form  of  the  notice 
there  is  no  inflexible  rule.  It  will  be  in  substantial  conformity 
to  law  if  it  contains  a  description  of  the  bill  or  note,  drawn 
with  sufficient  accuracy  to  identify  the  same,  together  with  the 

'  Compare  cases  cited  above. 
""  Infra. 
^  Infra. 


MANNER    AND    MODE.  376 

information  that  the  paper  has  been  duly  presented  and  dis- 
honored, and  that  the  party  notified  is  looked  to  for  re-irabnrse- 
ment.^  The  end  to  be  accomplished  by  the  notice  is  to  inform 
the  party  notified  that  the  particular  paper  was  presented  at 
maturity  for  payment  and  payment  refused.  This  may  be 
done  with  considerable  circumlocution  and  verbiage,  or  very 
tersely  and  succinctly,  with  the  same  effect.  But  whatever 
form  of  words  is  adopted  (and  in  tliis  considerable  latitude 
is  permissible),  it  must  not  fall  short  in  substantial  compli- 
ance with  the  above  requirements. 

§  835.  No  Form  Prescribed.  —  This  is  one  of  those  duties 
enjoined  by  the  law  merchant  which  cannot  be  safely  reduced 
to  rigid  formality.  To  prescribe  an  inflexible  form  for  notices 
of  this  kind,  though  it  might  be  a  matter  of  convenience  in 
exceptional  cases,  would  in  a  majority  of  instances  merel}'' 
serve  as  a  trap  to  the  unprofessional  dealer  in  securities  of  this 
sort.  For  this  reason  the  interests  of  the  trading  community 
are  better  subserved  by  enjoining  upon  the  holders  of  commer- 
cial paper,  upon  which  others  are  conditionally  liable,  the 
simple  duty  of  notifying  antecedent  parties,  in  case  of  non- 
payment or  non-acceptance,  so  as  reasonably  to  appi'ise  them 
of  the  dishonor  of  the  paper  upon  which  they  are  sought  to  be 
charged,  trusting  to  the  suggestions  of  common  sense,  for 
fitting  terms  in  which  to  convej^  tlie  information.  As  free  as 
is  this  plain  requirement  from  technical  abstruseness,  it  has 
nevertheless  been  the  subject  of  earnest  dispute,  and  no  incon- 
siderable amount  of  litigation.  It  maj'  be  instructive,  there- 
fore, to  note  the  manner  in  which  the  courts,  in  deciding 
adjudicated  cases,  have  held  as  to  what  is  a  substantial  descrif- 
tion  of  the  note  or  bill,  and  what  amounts  to  sufficient  infor- 
mation of  its  dishonor. 

§  836.  Immaterial  Omissions.  —  It  has  been  held  in  case 
of  the  dishonor  of  a  negotiable  promissory  note,  indorsed  by 
the  party  sought  to  be  cliarged,  that  where  the  notice  gave  the 
date  and  amount  of  the   note,  the  date  of  its  maturity,  the 

'  Infra.     See,  also,  Story  on  Prona.  Notes,  ^348,  and  cases  cited. 


376  NOTICE    OF    DISHONOR    OF    COMMEKCIAL    PAPEK. 

name  of  the  maker,  the  fact  of  indorsement,  and  that  it 
was  made  payable  to  such  indorser,  together  with  the  informa- 
tion that  it  had  been  presented  at  maturity  and  payment 
refused,  was  in  all  resj^ects  a  good  and  sufficient  notice,  not- 
withstanding an  omission  to  state  the  name  of  the  holder  in 
whose  interest  the  notice  was  given,  and  notwithstanding  also, 
that  the  accrued  interest  was  not  mentioned.^ 

§  837.  Date  of  Maturity  held  Immaterial.  —  So  it  was  held  that 
the  notice  was  not  defective,  merely  because  it  failed  to  state 
specifically  the  date  of  maturity,  it  not  appearing  that  there 
was  any  other  negotiable  instrument  to  which  the  notice  might 
apply.  Had  there  been  any  such  other  paper  in  existence,  that 
fact  could  have  been  shown  by  the  party  sought  to  be  charged, 
and  in  the  absence  of  such  evidence,  there  was  no  probability 
that  the  party  was  misled  by  the  omission.^ 

§  838.  Omission  of  Name  of  Payee.  —  So  also,  has  it  been  held, 
where  the  name  of  the  payee  was  omitted  from  the  notice, 
that  this  would  not  be  regarded  as  a  substantial  defect,  the 
description  being  otherwise  sufficiently  full  and  complete  to 
identify  the  note  upon  which  the  party  was  sought  to  be 
charged.^ 

§  839.  Clerical  Error  will  not  always  Vitiate.  —  A  mistake 
amounting  to  nothing  more  than  an  act  of  clerical  misprision, 
will  not  always  vitiate  the  notice.  As  where  a  notice  of  dis- 
lionor  stated  that  the  note  was  due  on  a  day  which  was  prior  to 
the  last  day  of  grace,  and  also  gave  the  name  of  the  maker  as 
"Jotham  Gushing,"  instead  of  Jotham  Cushman,  as  it 
should  have  been,  the  court  refused  to  hold  as  a  matter  of  law 
that  these  errors  were  sufficiently  important  to  vitiate  the 
notice;  but  declared  that  it  was  for  the  jury  to  decide  from  the 
evidence  whether  defendant,  having  no  other  note  at  the  bank, 

'  Howe  r.  Bradley,  19  Me.,  31.  See,  also,  Mills  v.  U.  S.  B'k,  11  WTicat.,  431 ; 
Davenport  v.  Gilbert,  4  Bosw.,  532;  Bradley  v.  Davis,  26  Me.,  45. 

"  Gates  V.  Beecher,  60  N.  Y.,  518.  See,  also.  Home  Ids.  Co.  v.  Green,  19 
N.  Y.,  518,  and  Youngs  v.  Lee,  12  Id.,  551.  In  the  latter  held  that  omission 
of  both  date  and  time  of  payment  was  immaterial. 

^  Brooks  V.  Blaney,  62  Me.,  456. 


MANNER    AND    MODE.  377 

was  misled  by  the  mistake.     The  jury  deciding  that  he  was 
not  so  misled  the  verdict  was  sustained.^ 

§  840.  Mere  Ambiguities  not  Fatal. —  I^or  will  mere  ambigui- 
ties, arising  from  clumsy  phraseology  in  the  notice,  destroy 
its  effect.  As,  where  a  notice  was  in  the  following  form: 
"Dec.  23,  1871.  Please  take  notice  that  M.  D.  S.,  and  C.  F. 
A's  note,  dated  Baltimore,  Sept.  20,  1871,  payable  ninety 
days  after  date  to  the  order  of  R.  S.,  for  three  hundred  and 
forty  dollars,  payable  at  Third  JS^ational  Bank,  and  by  you 
indorsed,  is  delivered  to  me  by  the  cashier  of  the  Western 
Bank  of  Baltimore,  for  protest,  and  tlie  same  not  being  paid, 
payment  thereof  having  been  demanded  and  refused,  is  pro- 
tested, and  will  be  returned  to  the  cashier,  and  tliat  you  will 
be  held  liable  for  the  payment  thereof"  This  was  held  suf- 
ficient notice  of  presentment  and  non-payment  of  the  note  on 
the  twenty-second  day  of  December."^  It  will  be  noticed  that 
the  date  of  the  notice  is  the  twenty-third,  and  that  the  deliv- 
ery to  the  notary  is  stated  in  the  present  tense.  The  inference 
might  follow  that  the  demand  was  made  by  the  party  giving 
notice  of  that  fact,  and  could  not  well  be  made  before  he 
received  the  note.  Tliough  the  above  can  hardly  be  com- 
mended as  a  good  model  for  notices  of  this  kind,  yet  its  defi- 
ciencies are  so  aided  by  legal  intendment  that  it  was  held  to 
convey  to  the  party  notified,  information  of  the  fact  that  the 
note  was  presented  on  the  day  it  became  due  according  to  its 
tenor  and  date  as  recited  in  the  notice,  and  that  payment  was 
then  and  there  refused.  This  case  is  distinguished  from  Ran- 
som V.  Mack,^  where  the  notice  given  was  of  a  demand  of 
payment  on  the  day  following  the  date  of  the  maturity  of 
the  note;  from  Routh  v.  Robertson,*  where  it  clearly  appeared 
from  the  notice  that  the  protest  was  made  before  the  note  was 
due,  from  Etting  v.  Schuylkill  Bank,^  and  Townsend  v.  Lorain 

'  Smith  V.  Wliiting,  12  Mass.,  6. 

2  Ileynolds  v.  Appleman,  41  Md.,  615. 

'2  Hill,  587. 

Ml  Sm.  &M.,  382. 

*2Penn.  St.,  355. 


378  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

Bank/  where  the  notice  was  of  ^presentment  before  the  instru- 
ment was  due. 

§  S41.  3Iust  Show  Presentment  on  Business  Day.  —  But  though 
no  particular  form  of  words  is  necessary,  the  notice  must  con- 
tain the  information  that  the  note  or  bill  has  been  dishonored. 
This  would  not  be  accomplished  bj  a  statement  that  it  was 
presented  and  payment  refused  on  the  fourth  day  of  July,  or 
other  legal  holiday,  although  the  demand  had  in  fact  been 
made  on  the  day  previous.  In  such  a  case,  it  was  held  b}'  the 
appellate  court  that  it  should  have  been  decided  by  the  trial 
court  as  matter  of  law,  that  the  notice  was  insufficient.- 

§  842.  Signed  by  One  Having  Authority.  —  So,  also,  has  it  been 
held  that  a  notice  given  in  writing,  as  coming  from  the  holder 
of  the  note,  and  signed  with  his  name,  by  one  who  had  neither 
special  nor  general  authority  to  give  the  notice  in  his  behalf, 
was  insufficient  for  the  purpose  of  charging  the  indorser  to 
whom  the  notice  was  delivered,  though  it  was  otherwise  in 
proper  form,  and  was  given  in  the  usual  time.^ 

§  843.  Where  and  how  Served. — Tlie  consideration  of  the  ques- 
tion of  where  and  how  a  notice  of  this  sort  may  be  effectually 
served,  without  imposing  upon  the  party  giving  it  the  duty  ot 
seeing  that  it  is  actually  received  in  time,  will  render  it  neces- 
sary to  give  the  rules  applicable  respectively  to  cases  where 
the  party  giving  the  notice  and  the  one  sought  to  be  charged, 
reside  or  carr^"  on  business  in  the  same  place;  where  the  party 
to  be  charged  resides  contiguous  to  the  place  where  the  paper 
is  dishonored,  or  the  party  subsequent  to  him  in  liability,  and 
from  whom  the  notice  should  come,  resides ;  and  where 
the  sender  of  the  notice  and  he  to  whom  it  is  sent  reside  or 
carr}--  on  business  in  different  places.  The  necessity  of  con- 
sidering these  three  classes  separately  under  this  division  ot 

'  2  Ohio,  345. 

*  Ransom  v.  Mack,  Sypra. 

*  Cabot  Bank  v.  Warner,  10  Allen,  522.  It  must  also  he  directed,  on  its 
face,  to  the  one  sought  to  be  charged.    Remer  v.  Downer,  23  Wend.,  620. 


MANNER    AND    MODE.  37D 

onr  subject  arises  from  the  fact  that  they  are  governed  by  dif- 
ferent rnles,  both  as  to  the  place  and   the  manner  of  service.^ 

§  844.  Parties  Residing  in  same  Place.  —  Where  the  party 
sought  to  be  cliarged  by  the  notice  resides  or  carries  on  busi- 
ness in  the  same  city  or  village  where  the  paper  is  dishonored, 
or  from  whence  the  notice  comes,  it  should  generally  be  served 
upon  him  personally,  or,  what  is  regarded  as  tantamount 
thereto,  delivered  at  his  usual  place  of  abode,  or  his  place  of 
business.^ 

§  845.  Indorser  Temporarily  Absent.  —  In  pursuance  of  this 
rule,  it  was  held  that  where  the  sender  of  the  notice  and  the 
party  to  be  notified  resided  in  the  same  town,^  the  latter  could 
not  be  charged  by  notice  sent  to  him  through  the  post,  and 
directed  to  him  at  the  place  where  he  was  then  sojourning,  he 
being  temporarily  absent  from  home.'* 

§846.  What  Constitutes  Place  of  Business.  —  So,  where  the 
indorser  lived  at  board  in  the  city  of  Bangor,  and  was  fre- 
quently absent  from  home  attending  to  his  business,  but  had  a 
place  in  the  counting  room  of  a  business  firm  of  the  same 
city,  where  he  usually  transacted  business  when  not  absent,  and 
this  was  all  the  place  of  business  he  had,  it  was  held  that  in 
contemplation  of  law,  he  had  both  a  place  of  business  and  a 
residence  in  Bangor,  at  either  of  which  a  notice  should  be  left 

'  Where,  at  the  time  the  holder  received  the  note,  the  indorser  was  known 
to  be  an  inmate  of  a  certain  boarding  house,  which  he  left  before  the  matu- 
rity of  the  obligation,  and  liad  embarked  for  Europe;  but,  on  inquiring  for 
him,  for  the  purpose  of  notifying  him  of  the  dishonor  of  the  note,  the  holder 
was  informed  by  the  proprietor  of  the  house  that  he  was  still  boarding 
there,  it  was  held  that  notice  left  for  him  at  the  boarding-house  was  suffi- 
cient.    McMuTtrie  v.  Jones,  8  Wash.,  206. 

''Williams  v.  Bank  of  U.  S..  2  Peters,  96;  Timnis  v.  Delisle,  5  Blackf., 
447 ;  Bowling  v.  Harrison,  6  How.,  248. 

^The  w^ord  "  town  "  used  here  is  intended  to  signify  about  the  same  thing 
as  is  understood  by  "village  "  in  those  portions  of  the  country  where  the 
counties  are  divided,  for  purposes  of  local  government,  into  towns,  which 
answer,  as  nearly  as  may  be,  to  the  townships,  and  perhaps parjs/te.s,  of  other 
sections,  where  town  is  understood  to  mean  substantially  the  same  as 
village. 

*  Wilcox  V.  McNutt,  2  How.  Miss.,  776. 


380  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

for  him  in  order  to  fix  his  liability  upon  the  contract  of  indorse- 
ment, provided  he  was  not  personally  notified  in  time  else- 
where.^ 

§  S47.  Where  Residence  Known.  —  So,  also  where  the  holder 
of  a  note,  which  had  been  duly  presented,  and  payment  refused, 
resided  in  the  city  of  Kew  York,  and  the  indorser  was  also  a 
resident  of  the  same  city,  but  lived  at  Kip's  Bay,  some  three 
and  a  lialf  miles  from  the  postofiice,  and  the  holder  knew 
where  such  indorser  lived,  it  was  held  that  a  notice  enclosed  in 
a  letter,  and  deposited  in  the  postofiice  of  the  city,  was  not 
sufiicient  to  charge  the  indorser,  in  the  absence  of  any  proof 
that  the  same  was  received  by  him  on  the  day  following  the 
date  of  dishonor.  In  deciding  this  case  stress  was  laid  upon 
the  fact  that  the  carriers  did  not  carry  letters  to  Kip's  Bay, 
which  at  that  time  was  about  one  mile  beyond  the  compact 
portion  of  the  city  where  letters  were  usually  delivered.'^ 

§  848.  By  Post,  Delivery  Must  be  Proved.  —  The  same  case  was 
again  before  the  same  court  under  a  somewhat  diflerent  aspect. 
At  the  second  trial  it  appeared  that  the  indorser  had  given 
orders  at  tiie  postofiice  to  have  his  letters  left  at  a  certain 
house  on  Frankfort  street,  where  he  called  or  sent  for  them 
eveiy  day.  But  it  was  still  held  that  the  notice  was  insufli- 
cient  unless  it  was  proved  that  the  letter  containing  it  was 
actually  delivered  at  the  house  on  Frankfort  street,  on  the  day 
following  that  on  which  payment  was  refused.'^ 

§  849.  DiflFerent  Meaning  of  tlie  Word  Town.  —  The  general  test 
as  to  whether  the  situation  of  tlie  parties  is  such  that  informa- 
tion of  the  dishonor  of  the  paper  may  be  communicated  by 
mail,  so  as  to  aflect  the  party  notified  whether  he  receives  the 


'  Pierce  v.  Peiidar,  5  Mete,  352.  See  Brindley  v.  Barr,  3  Harr.  (Del.),  419 ; 
Shelburne  Falls  B'k  v.  Townslej',  107  Mass.,  444 ;  Gilchrist  v.  Donnell,  53 
Mo.,  591;  Nivius  v.  B'k  of  Lansiogburg,  10  Mich.,  547;  Smedes  v.  U(ica 
B'k,  20  Johns,  371;  Sheldon  v.  Benham^  4  Hill,  129;  Todd  ??.  Edwards,  7 
Buih.,  89 ;  Neal  v.  Taylor,  9  Id.,  3«0 

'^Ireland  v.  Kip,  10  Johns,  489.  See,  also,  Bowling  o.  Arthur,  34  Miss., 41; 
Bowling  c.  Harrison,  U  How.  (U.  S.),  248. 

» 11  Johns,  231. 


MANNER    AND    MODE. 


381 


notice  or  not,  is  their  respective  places  of  residence.  In  some 
of  the  cases  the  notice  is  required  to  be  personal,  or  at  the 
usual  place  of  abode,  or  place  of  business  of  the  party  notified, 
when  they  reside  in  the  same  town ;  while  in  other  cases,  com- 
munication by  mail  is  expressly  upheld  between  fellow-towns- 
men. The  conflict  between  the  decisions  in  these  cases  is 
more  apparent  than  real.  The  difierence  arises  from  the  fact 
that  in  some  of  the  states  the  word  "  town  "  has  a  different  sig- 
nification from  that  given  it  in  others — the  rule  being  substan- 
tially the  same.  In  those  states  where  postal  communication 
is  inhibited  between  residents  of  the  same  town,  the  word  is 
used  synonymously  with  "  village."  It  means  a  collection  of 
houses,  or  is  intended  to  distinguish  town  from  country. 
While  in  those  states  where  the  courts  favor  this  means  of 
communication  between  those  residing  in  the  same  town,  the 
word  is  used  to  designate  a  division  of  the  county  which  may 
include  no  urban  population  at  all,  and  frequently  has  several 
postofiices.  In  Xevv  England  and  some  of  the  older  states,  a 
town  may  include  several  villages,  and  correspond  to  what  are 
elsewhere,  particularly  in  the  AYest,  called  townships. 

§  850.  By  Post  between  Different  Villages  in  Same  Town.  —  It 
is  accordingly  held  that  the  post  is  tlie  proper  means  of  com- 
munication between  residents  of  difi"erent  villages  in  the  same 
town,  where  such  villages  have  separate  and  distinct  post- 
offices.^ 

§  851.  Leaving  at  Place  of  Residence  or  Business.  —  A  notice 
duly  delivered  at  the  last  known  place  of  residence,  or  place 
of  business,  of  a  party  to  a  bill  or  note  who  has  absented  him- 
self from  his  usual  place  of  abode,  will  be  as  efifective  as 
though  it  were  personally  delivered  to  the  one  for  whom  it  was 
intended.^  "Were  the  rule  laid  down  differently,  it  would  afford 
a  convenient  facility  for  the  evasion  of  liability  by  one  who 
had  assumed  the  conditional  obligation  of  indorser.  If  by 
simply  absenting  himself  from  his  home,  he  might  cast  upon 

'  Ransom  v.  Mack,  2  Hill,  N.  Y.,  587;  Shaylor  v.  Mix,  4  Allen,  351. 
2  Jones  V.  Mansker,  15  La.,  51 ;  Stedman  v.  Gooch,  1  Esp  ,  3, 


382  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

tlie  holder  tlie  onus  of  tracing  out  his  whereabouts  in  order  to 
serve  him  with  notice  of  dishonor  of  the  paper,  the  tempta- 
tion to  evade  such  unwelcome  intelligence  would  be  too  strong 
for  the  powers  of  resistance  of  a  large  majority  of  the  trading 
community. 

§  852.  Residence  in  one  Place,  Business  in  Anotlier.  —  Simple 
and  reasonable  as  the  rule  seems,  requiring  personal  notice  to 
resident  parties,  and  fair  and  liberal  as  the  provision  appears 
allowing  service  at  the  place  of  business  or  the  residence  of 
the  party  to  be  notified,  at  the  option  of  the  holder,  the  very 
latitude  of  construction  which  has  arisen  from  necessity,  and 
been  prompted  by  experience,  has  had  the  effect,  in  some 
instances,  to  surround  the  administratiou  of  the  law  with  addi- 
tional complications  and  difficulties.  It  not  unfrequently 
occurs  that  the  residence  of  the  party,  and  his  place  of  business 
are  in  separate  and  distinct  places,  and  one  or  the  other  of 
such  places  may  be  where  the  note  or  bill  is  dishonored.  Such 
was  the  fact  in  the  case  of  Yan  Yechten  v.  Pruyn.'  The  note 
was  payable  in  Catskil,  where  the  indorser  resided  with  his 
family,  but  his  place  of  business  was  in  the  city  of  Xew  York 
where  he  spent  four  days  of  the  week,  and  received  some  of 
his  letters.  Notice  of  the  non-payment  of  the  note  was  sent 
to  him  inclosed  in  a  letter  deposited  in  the  postoffice  at  Cat- 
skil,  and  addressed  to  him  at  his  place  of  business  in  iS^ew 
York.  It  was  held  insufficient,  for  the  reason  that  notice 
should  have  been  left  at  his  residence  in  Catskil  even  though 
that  mode  of  service  might  have  involved  delay  in  conveying 
the  necessary  information.  That  such  delay  would  neces- 
sarily have  followed,  can  scarcely  be  doubted,  yet  the  decision 
is  in  strict  conformity  to  a  rule  established  for  the  mutual  pro- 
tection and  convenience  of  the  parties,  and  one  which  in  this 
instance  the  holder  would  have  best  consulted  his  own  conven- 
ience, as  well  as  his  own  security,  by  following.- 

§  853.   "Place  of  Business"  and  "Residence."  and  what  Araonnts 
to  Leaving  Notice  at  Either.  —  The  courts  have  found  it  necessary 

'  1?>  N.  Y.,  549. 

« Curtis  V.  State  B'k,  fi  Blackf.,  313. 


MANNEIi    AND    MODE.  383 

to  indicate  what  was  meant  by  the  residence  and  what  by  the 
place  of  business  of  the  indorser  or  drawer.  They  have  like- 
wise judiciously  determined  what  amounted  to  a  service  of  the 
notice  by  leaving  it  at  either  the  residence  or  place  of  business. 
§  854.  Residence.  —  In  designating  the  residence  as  the 
proper  place  for  such  service,  it  was  not  intended  to  restrict  the 
party  notifying  to  the  ^private  residence  of  antecedent  parties, 
for  the  manifest  reason  that  they  might  be  residents,  of  the  city, 
town,  or  village,  and  still  have  no  private  residence,  in  the  pop- 
ular sense  of  the  term,  either  there  or  elsewhere.  What  is  com- 
monly understood  by  the  residence  of  a  person  within  a  city, 
is  his  private  mansion  or  house,  occupied  by  himself  and  fam- 
ily exclusively.  It  would  be  extremely  absurd,  as  well  as 
embarrassing  to  the  courts,  to  give  the  term  used  in  this  connec- 
tion such  a  restricted  meaning.  It  might  render  utterly  im- 
practicable the  proper  notification  of  any  but  householders, 
except  where  the  notice  was  delivered  to  them  in  person.  The 
liberal  and  rational  construction  given  to  the  term  is  illus- 
trated to  some  extent  in  the  case  of  Pierce  v.  Pendor.^ 

§  855.  Need  not  be  Domicile. —  It  has  also  been  held  that  for  a 
part}^  to  be  a  resident  within  the  meaning  and  contemplation 
of  the  law-merchantj  it  is  not  necessary  that  he  should  be 
domiciled  in  the  same  place — nor  even  that  he  should  be  dom- 
iciled at  all.  It  was  held  sufficient  to  bring  the  place  within 
the  meaning  of  the  law  that  it  was  the  place  of  abode  at  the 
time,  and  an  instruction  to  the  effect  that  in  order  to  consti- 
tute a  house  the  place  of  residence  of  the  occupant  it  should 
be  where  he  was  domiciled,  was  declared  to  be  erroneous.^ 
But  it  would  seem  where  a  party  to  a  bill  or  note,  has  his 
domicile  in  one  place  and  his  residence  in  another,  that  notice 
left  at  either  within  a  reasonable  time  will  be  sufficient  to  sat- 
isfy tlie  law.^ 

§856.  Leaving-  Notice  at  Residence.  —  In  one  case,  however, 
where  the  notary  who  gave  the  notice,  upon  calling  at  the 

'  Ante  %  84(1,  note. 

-Young  V.  Durgin,  lo  (irniy  (Mass.),  264. 

'Merz  c.  Kaiser,  20  La.  Au.,  577. 


384  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

residence  of  the  party  for  that  purpose,  met  a  boy  in  the  door- 
yard,  who  said  he  was  the  indorser's  son,  to  whom  he  gave 
the  notice  with  the  request  that  he  would  hand  it  to  his  father, 
and  afterwards  saw  him  approach  the  house  with  the  notice, 
but  did  not  see  him  enter,  such  service  was  held  insufficient  to 
charge  the  indorser.^  In  this  case  the  mere  leaving  the  notice 
in  the  hands  of  one  about  the  house  without  being  able  to 
show  even  that  the  message  was  taken  within,  much  less  that 
it  actualh'  came  to  the  hands  of  the  one  for  whom  it  was 
intended,  was  not  such  a  leaving  it  at  the  residence  of  the 
party  as  the  law  enjoins. 

§  857.  Leaving  Notice  at  Boarding  House.  —  The  rule  as  above 
laid  down  seems  to  bear  more  harshly  upon  the  holders  of 
dishonored  commercial  paper  than  that  declared  in  the  case  of 
Bank  of  United  States  v.  Hatch,^  where  the  indorser  was  liv- 
ing in  lodgings  at  a  public  boarding  house,  and  the  notary 
called  and  inquired  of  another  boarder,  by  whom  he  was 
informed  that  the  party  was  absent,  whereupon  the  notice  was 
delivered  to  such  other  boarder,  and  he  was  requested  to  hand 
it  to  the  absent  indorser  on  his  return.  This  was  held  a  suffi- 
cient service  of  the  notice,  whether  as  a  matter  of  fact  it  was 
received  by  the  person  for  whom  it  was  intended  or  not. 

§  858.  Leaving  at  Counting  House  with  Pretended  Agent. — So, 
also,  was  a  service  held  sufficient  which  consisted  in  leaving 
the  notice  at  the  counting-house  of  the  party  to  be  notified, 
with  one  who  represented  himself  as  his  agent,  notwithstand- 
ing it  subsequently  transpired  that  the  representations  of  the 
pretended  agent  were  utterly  false,  and  he  was  not  authorized, 
either  generally  or  specially,  to  represent  his  alleged  principal 
in  that  or  any  similar  transaction.^ 

§  859.  Will  not  Suffice  to  Leave  Near  the  Place.— But  there  can 
hardly  be  said  to  be  a  conflict  between  the  two  cases  last  cited 
and  that  of  Adams  v.  WridiJ:.^     The  difference  of  conclusion 


J  Adams  v.  Wriglit,  14  Wis.,  408. 
« 1  McLean,  90;  S.  C  G  Peters,  2."}0. 
2  Jacobs  V.  Turner,  2  La.  An.,  9G4. 
*  Supra. 


MANNER    AND    MODE.  385 

reached  seems  to  emphasize  the  importance  of  a  strict  com- 
pliance with  the  requirement  to  deliver  the  message  at  the 
place  of  residence  or  business,  and  that  the  law  will  not  be 
satisfied  by  merely  leaving  it  in  proximity  thereto,  when  the 
omission  is  the  result  of  carelessness  or  indifference  on  the 
part  of  the  messenger  who  has  the  notice  in  charge.  In  the 
two  cases  cited  above  from  which  are  taken  the  illustrations  of 
a  liberal  construction  of  the  provision,  in  favor  of  the  holder 
of  the  paper,  there  was  an  appearance  of  the  utmost  diligence 
compatible  with  the  peculiar  circumstances  and  surroundings 
of  the  parties.  Any  failure  of  the  indorser  to  receive  the 
notice  in  time,  in  either  case,  was  the  result  of  his  absence  from 
his  place  of  residence  or  business,  and  in  leaving  it  in  the  one 
case  with  the  fellow  boarder,  or  in  the  other  with  the  pretended 
agent,  the  messenger  availed  himself  of  the  means  which  pre- 
sented the  strongest  likelihood  of  accomplishing  the  desired 
end.  A  well  defined  departure  from  the  rule  as  to  where  the 
notice  should  be  left,  when  it  is  not  personally  served  upon  a 
resident  party,  would  be  fraught  with  considerable  hazard  to 
the  rights  of  indorsers  and  drawers,  for  the  reason  that  where 
it  is  once  admitted  that  a  notice  which  is  constructive  in  its 
nature  may  be  legally  served  by  a  deposit  elsewhere  than  at 
such  places  as  the  party  to  whom  it  is  directed  habitually 
attends,  the  extent  of  the  departure  will  become  a  mere  ques- 
tion of  caprice.  It  is  better  to  be  governed  by  a  rule  which 
may  occasionally  work  harshly  than  to  be  without  any  rule 
at  all. 

§  8G0.  Illnstration  of  Same  Principle.  —  So  where  an  indorser 
of  negotiable  paper  was  carrying  on  business  in  the  third 
story  of  a  building  occu])ied  by  numerous  other  persons, 
between  whom  and  himself  there  was  no  business  connection 
or  relation  other  than  that  of  neighborhood,  it  was  held  that 
such  a  notice  could  not  be  properly  served  by  leaving  it  on 
one  of  the  desks  of  an  office  in  the  second  story  of  the  same 
building.^ 

'Kleinmann  v.  Boerstein,  82  ^lo.,  311. 
25 


380  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPFR. 

§861.  Corresponding   Number  not   Sufficient   to   Identify.  —  So, 

also,  has  it  been  held  not  to  be  a  sufficient  proof  of  service, 
that  the  notice  was  left  at  a  building  with  a  number  corres- 
ponding to  the  number  of  the  house  mentioned  on  the  bill,  as 
the  residence  or  place  of  business  of  the  indorser.^ 

§862.  Several  Places  of  Business,  Either  will  Suffice.  —  But 
where  the  indorser  or  drawer  carries  on  business  at  several 
distinct  places  in  the  city  or  villnge  in  which  the  note  or  bill 
is  payable,  in  case  of  non-acceptance  or  non-payment,  notice 
may  be  properly  sei'ved  at  either  one  of  such  places  of  business 
without  the  holder  being  required  to  determine  at  which  of 
them  there  would  be  the  greatest  likelihood  of  finding  the 
party  at  any  particular  time."^ 

§  863.  Holder  may  Elect  between  Place  of  Business  and  Residence. 
—  When  the  party  to  be  notified  resides  and  carries  on  busi- 
ness both  in  the  same  place  where  the  note  is  dishonored,  it 
seems  that  the  holder  is  unrestricted  in  his  choice  of  methods 
of  making  the  service.  It  may  with  equal  propriety  be  served 
at  either  the  residence  or  the  counting  room,  by  leaving  it  in 
the  hands  of  some  one  who  is  apparent^y,  at  least,  in  charge 
of  the  place,  or  member  of  the  family,  or  in  some  manner 
connected  with  either  the  household  or  the  business  afiairs  of 
the  party.  x\nd  when  it  is  impracticable  to  leave  the  notice 
with  any  one  sustaining  intimate  relations  toward  the  one  to 
whom  it  is  addressed,  it  may.  as  we  have  seen,  be  served  with 
equal  effect  by  leaving  it  with  a  stranger. 

§  864.  May  be  Left  when  no  One  there  to  Receive  it.  —  And 
when  tliere  is  not  even  a  stranger  at  the  place  where  the  drawer 
or  indorser  is  sought,  with  whom  the  notice  may  be  left,  be  it 
at  his  residence,  or  his  place  of  business,  the  written  message 
may  be  deposited  there,  and  by  being  so  left,  will  charge  the 
party  as  effectively  as  though  it  had  been  delivered  into  his 
own  hand.^    But  where  there  is  an  omission    to   leave   the 


'Davenport  v.  Gilbert,  4  Bosw.,  532. 

2  Phillips  V.  Alderson,  5  Humph.  (Tenn.),  403. 

'Commercial  Bank  v.  Gove,  15  La.,  113. 


MANNER    AND    MODE.  387 

notice  witli  any  one,  the  reason  for  such  omission  should  pro- 
babl)'  be  given.^ 

§  865.  At  Business  Place,  must  be  on  Proimetor. —  It  is  not  suf- 
ficient to  constitute  the  counting-room,  office,  or  shop,  the 
place  of  business  of  the  party  to  be  charged  with  notice,  that 
he  regularly  transacts  business  there.  It  must  be  his  place  of 
business,  in  the  sense  that  he  has  a  proprietary  interest  in  the 
subject  of  the  transactions,  or  in  the  proceeds  of  the  business 
there  conducted.  Notice  left  at  a  business  house  for  one  of  its 
clerks,  or  other  employes,  would  not  bind  him  unless  it  came 
to  his  own  hands  in  due  time.^ 

§  866.  Office  of  Directors  of  Corporation.  —  It  has  also  been 
held  that  the  president  of  a  private  corporation  could  not  be 
notified  constructively,  by  leaving  notice  of  the  dishonor  of 
commercial  paper  drawn  or  indorsed  by  him,  at  the  office  of 
the  board  of  directors,  over  which  he  presided,  unless  there 
was  some  special  authority  to  serve  the  notice  in  that  manner.^ 

§  867.  Case  Distinguished  from  Above.  —  This  case  is  to  be 
distinguished  from  that  of  Berridge  v.  Fitzgei-ald.''  The  latter 
was  where  the  indorser  of  a  bill  was  one  of  the  directors  of  a 
corporation.  He  had  no  other  place  of  business  and  was 
engaged  in  no  other  occupation  than  that  of  director.  He 
was  at  the  company's  office  when  he  indorsed  the  bill,  which 
was  regular  business  paper,  and  liad  been  accepted  by  the  com- 
pany. When  the  instrument  was  dishonored,  the  affairs  of  the 
corporation  were  being  wound  up,  and  the  holder  did  not  know 
wliere  the  indorser  resided.  Accordingly,  he  sent  the  notice  to 
him  at  the  company's  office,  and  such  service  was  held  suffi- 
cient, though  it  was  never  actually  delivered  into  the  hands  of 
the  one  for  whom  it  was  intended. 

§  868.  Difference  in  Time  at  Residence  or  Business  Place.  —  It  is 
also  well  to  bear  in  mind,  in  this  connection,  that  there  is  a 
difference  between  the  methods  of  serving  notice  at  the  resi- 

'  Davenport  v.  Gilbert,  Supra. 

*  Bank  of  West  Tennesse  v.  Davis,  5  Heisk.  (Tenn.),  436. 

*  Commercial  Bank  v.  Siroug,  28  Vt ,  Jlti. 
<  4  Q.  B.,  639. 


38S  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

dence  of  the  party,  and  at  his  place  of  business.  In  the  former 
it  is  sufficient  if  the  notice  is  delivered  at  any  time  previous  to 
the  hour  of  retiring  for  the  family,  while  in  the  latter  it  should 
be  delivered  during  the  ordinary  business  hours  of  the  day.^ 

§  869.  By  Mail  Between  Residents  of  Same  Place.  —  But  the  rule 
requiring  personal  notice,  or  by  leaving  it  at  the  place  of  busi- 
ness or  the  residence  of  the  party  notified,  where  the  parties 
are  residents  of  the  same  place,  is  by  no  means  universal. 
Although  it  is  still  maintained  in  man}-  of  the  states  of  the 
Union,  in  many  others  and  in  England,  it  has  been  materially 
modified.  One  of  the  reasons  assigned  for  the  inhibition  of  the 
post  as  a  means  of  communication  between  residents  of  the 
same  place,  was,  that  as  there  was  no  postage  charged  upon 
drop  letters  the  government  did  not  assume  the  same  degree 
of  care  of  mail  matter  of  this  sort,  as  of  letters  transmitted 
through  the  mails  for  compensation.  This  reason  is  hardly 
satisfactory.  Probably  the  better  one  is,  that  where  the  notice 
is  deposited  in  the  postoffice,  its  receipt  in  time  depending 
upon  the  promptness  with  which  the  drawer  or  indorser  calls 
for  the  letter,  is  much  less  certain  than  sending  it  directly  to 
the  residence  or  place  of  business  of  the  part}',  or  delivering  it 
to  him  in  person  on  the  day  following  the  date  of  non- payment. 
Whatever  may  have  been  the  influence  of  either  or  both  of 
these  causes  in  bringing  about  the  original  adoption  of  the 
rule,  the  changes  wrought  in  our  postal  system,  particularly 
within  a  few  years  past,  have  entirely  disposed  of  the  one,  and 
greatly  modified  and  limited  the  eftectof  the  others. 

§  STO.  Letter  Carriers.  —  Since  the  adoption  of  the  free  deliv- 
ery system,  by  which  mail  matter  is  delivered  by  letter  carriers 
in  all  the  large  cities  and  towns  of  this  country,  the  change 
has  suggested  an  entire  abrogation,  in  those  places  where  car- 
riers are  employed,  of  the  rule  that  obtained  under  the  old 
system,  and  the  adoption  of  the  more  convenient  rule,  that 
even  as  between  residents  of  the  same  place,  where  letter  car- 
riers are  regularly  employed,  it  shall  be  sufficient  proof  of 

1  Ante  III.,  §§  788,  789. 


MANNER  AND    MODE.  389 

service  to  sliow  that  the  notice  was  inclosed  in  a  letter  duly 
stamped,  and  addressed  to  the  drawer  or  indorser  at  his  resi- 
dence or  place  of  business,  and  deposited  in  the  postoffice  in 
time  for  regular  delivery  on  the  day  the  party  would  be  en- 
titled to  personal  notice.' 

§  871.  Drop  Letters  Required  to  be  Stamped.  —  In  the  case  of 
McXatt  V.  Jones,~  the  fact  that  by  the  law  of  Congress  letters 
deposited  for  local  distribution  are  required  to  be  stamped,  is 
regarded  as  sufficient  to  justify  an  abandonment  of  the  rule 
requiring  personal  notice  in  places  of  the  magnitude  and 
importance  of  Augusta,  Georgia. 

§  872.  Penny  Post.  —  For  purposes  of  giving  notice  of  the 
dishonor  of  negotiable  instruments,  the  penny  post  has  for 
some  time  been  regarded  as  a  proper  and  legal  means  of  com- 
munication in  the  city  of  London  and  other  large  cities  in 
Great  Britain.^ 

§  873.  Baltimore  and  Other  Large  Cities.  —  It  was  also  decided 
in  the  case  of  Walters  v.  Brown,'*  that  in  large  cities,  like  Bal- 
timore, where  letter  carriers  were  employed,  and  the  parties 
entitled  to  notice  were  accustomed  to  receive  letters  from  such 
carriers,  the  rule  requiring  personal  notice  did  not  apply.  It 
was  held,  in  that  case,  that  a  notice  regularly  posted  in  time 
for  delivery  in  the  ordinary  course  of  mail,  and  properly 
addressed  to  the  party,  would  as  effectually  charge  him  with 
notice  of  the  demand  and  non-payment  of  the  paper  upon 
which  he  was  liable  as  though  such  notice  had  been  personally 
served  or  left  at  his  business  place.  Other  cases  have  recog- 
nized the  penny  post,  or  the  postal  delivery  system,  as  absolv- 
ing the  holder  from  the  duty  of  employing  a  special  messen- 
ger, in  order  to  render  the  receipt  of  the  notice  certain  between 
residents  of  the  same  place.  ^ 

'Shoemaker  v.  Mechanics'  Bank,  59  Pa.  St.,  79. 
5  52  Ga.,  473. 

'3  Daniel  on  Negot.  Inst.,  tj  1010. 
*  15  Md.,  285. 

'Brindley  v.  Barr,  3  Harrini,^ton  (Del.),  419;  Bell  v.  Ilagerstown  Bank,  7 
Gill.  21G. 


393  NOTICE  or  dishonor  of  commercial  paper. 

§  87J:.  Established  Custom  of  Bank.  —  And  even  where  the  car- 
riers are  not  employed,  resident  parties  may  be  notified  by 
means  of  a  letter  deposited  in  the  postoffice,  and  the  fact  that 
such  notice  was  so  deposited,  properly  addressed,  will  be  sufS.- 
cient  to  charge  the  party  with  notice,  whether  he  receives  it 
or  not,  when  such  mode  of  service  is  in  accordance  with  an 
established  custom  of  the  bank,  of  which  custom  the  party 
notified  was  cognizant.^ 

§  875.  May  be  Sent  by  Post  wiien  Authorized  by  Indorser. —  So 
when  the  indorser  has  expressly  authorized  any  one  in  whose 
hands  the  note  may  be  when  dishonored,  to  send  the  notice  by 
post,  though  a  resident  of  the  same  place,  the  notice  may  be 
served  in  that  manner  with  the  same  effect  as  when  the  parties 
reside  at  a  distance  from  each  other.  But  such  words  as, 
"Third  indorser,  J.  P.  H.,  lives  at  Yicksburg,"  written  upon 
the  instrument,  were  held  not  to  amount  to  an  agreement  on 
the  part  of  J.  P.  H.  to  receive  notice  of  dishonor  through  the 
Vicksburg  postoffice,  when  that  was  the  place  where  payment 
was  refused  by  the  maker,  and  also  the  place  of  residence  of 
the  party  sending  the  notice.^ 

§876.  Parties  Living  near  Place  of  Dishonor. — Generally  where 
the  party  to  a  bill  or  note,  whose  liability  is  sought  to  be  fixed 
by  notice,  lives  in  the  neighborhood  of  the  city  or  village 
where  the  instrument  is  made  payable,  and  it  is  presented, 
and  acceptance  or  payment  refused,  he  may  be  notified  by  a 
drop-letter,  deposited  in  the  postoffice  where  the  instrument 
is  dishonored,  it  being  the  nearest  office  to  the  party  noti- 
fied, or  the  one  at  which  he  usually  receives  his  letters.^ 

§  877.  Illustration  of  Same.  —  So  where  the  holder  of  a  note 
resided  in  Georgetown,  District  of  Columbia,  and  the  indoi'ser 
lived  in  the  country,  with  his  nearest  postoffice,  and  the  one  at 
which  he  usually  received  his  letters,  at  Georgetown,  the  note 
being  presented  for  payment  in  that  city,  and  payment  refused, 

^  Lime  Rock  Bank  v.  Hewett,  52  Me.,  51. 
5  Bowling  V.  Harrison,  6  How.  (U.  S.),  2-48. 

'Bondurant  v.  Everett,  1  Mete.  (Ky.),  658;  Barret  v  Evans,  28  Mo.,  331 ; 
Bell  V.  State  Bk.,  7  Blackf.,  456;  Jo-  es  v.  Lewis,  8  Watts  ct  Serg.,  14. 


MAXXER    AND    MODE.  391 

a  notice  of  such  non-payment,  inclosed  in  a  letter,  and  addressed 
to  the  indorser  at  Georgetown,  was  held  snfificiently  served, 
because,  to  have  comj3elled  the  holder  to  incur  the  expense  of 
the  employment  of  a  private  messenger,  under  the  circum- 
stances, would  have  been  unreasonable.^ 

§  878.  Partners — One  Resident,  one  Non-resident. —  An  excep- 
tional case,  where  the  manner  of  notifying  country  indorsers 
is  fully  approved,  is  that  of  Hume  v.  "Watt.^  In  this  case 
there  was  an  indorsement  by  two  partners,  one  of  wliom  lived 
in  the  country,  in  the  vicinity  of  the  city  where  the  note  was 
dishonored,  and  received  all  his  mail  matter  at  the  city  post- 
office;  while  his  co-indorser  was  a  resident  of  the  city,  and,  as 
such,  entitled  to  personal  notice.  As  it  was  partnership  paper, 
notice  properly  served  upon  either  was  sufficient  to  bind  both. 
The  only  service  made  was  upon  the  one  who  resided  in  the 
country,  and  that  by  a  drop-letter  deposited  in  the  postoffice  of 
the  place  of  dishonor.  The  notice  was  held  insufficient,  for 
the  reason  that  it  should  have  been  personally  served  upon  the 
indorser  who  resided  in  the  city.^ 

§  879.  Case  Reqniring  Personal  Notice  to  Country  Indorser.  — 
The  recognition  of  the  sufficiency  of  notice  by  means  of  drop- 
letters,  to  those  who  reside  near  the  place  of  dishonor,  and 
receive  their  letters  at  that  postoffice,  is  so  general  as  to  be 
almost  universal.  But  it  has  been  held  that  the  postoffice  is 
not  only  not  the  proper  place  to  deposit  notice,  when  the 
indorser  resides  in  the  same  town  with  the  party  giving  the 
notice,  but  that  it  is  equally  objectionable  when  the  indorser 
lives  close  to  the  border  of  the  town  where  the  letter  contain- 
ing the  notice  is  posted."* 

§  880.  Indorser  Three  3Iiles  Distant  —  The  residence  of  the 
indorser  being   indicated   as   "close  to  the  border"  of  the 

'  Bank  of  Columbia  «.  Lawrence,  1  Pet.,  578. 

2  5  Kans.,  84. 

^Tlie  principal  reason  assigned  by  the  court  for  thus  liokling  was  that 
there  was  not  a  proper  degree  of  diligence  shown  in  making  inquiry  for  tlie 
resident  indorser. 

*  McCrummen  «.  McCrummen,  5  Martin  (La.),  N.  S.,  158;  Laporte  v. 
Landry,  //)  ,  359. 


392  NOTICE    OF    DISHONOR    OF    COMMEKCIAL    PAPEK. 

town,  it  might  be  inferred  that  personal  notice  was  insisted 
upon  because  the  indorser  was  substantially  a  resident  of  the 
town — only  separated  therefrom  by  an  imaginary  line.  But 
a  subsequent  case,  by  the  same  court,^  is  calculated  to  correct 
any  such  impression.  In  that  case,  the  indorser  resided  two 
or  three  miles  from  the  town  where  the  letter  was  posted,  and 
where  he  generally  received  his  mail  matter,  but  it  was  held 
that  notice  deposited  in  such  postoffice  was  not  properly  served, 
but  should  have  been  delivered  to  him  by  a  private  messenger. 

§  881.  Party  Resident  at  a  Great  Distance  from  Postoffice.  —  The 
mere  fact  that  the  party  to  be  notified  resides  in  the  country 
does  not  always  justify  the  employment  of  the  mail  as  a  means 
of  communicating  the  fact  of  dishonor.  He  may  reside  so 
far  beyond  the  limits  of  tlie  city  or  village  as  to  be  inaccessi- 
ble l)y  that  means.  As  where  a  party  resides  thirty  or  forty 
miles  distant  from  any  postoffice.  In  such  a  case,  it  was  held 
that  the  notice  must  be  delivered  to  him  in  the  same  manner 
as  though  he  resided  witliin  the  limits  of  the  place  where  the 
note  was  payable.'^  And  that  the  holder  should  commence 
exercisino^  dilio-ence  in  reachino;  the  indorser  on  the  dav  fol- 
lowing  that  upon  which  the  note  was  dishonored,  and  continue, 
without  unnecessary  intermission,  until  the  party  was  notified. 

§  882.  Parties  Residing  near  DiiTerent  Post  Tovras.  —  Where  the 
party  sending  the  .notice  and  the  one  to  be  notified  resided  as 
a  distance  from  each  other — in  or  near  different  cities,  towns 
or  villages,  notice  by  the  post  is  not  only  sufficient,  but  it  is 
as  a  general  rule  the  safest  and  best  means  of  notification  which 
can  be  adopted.  And  where  it  is  proved  that  the  holder,  or 
party  giving  the  notice  has  deposited  a  letter  containing  the 
same  in  the  postoffice  properly  addressed,  that  is  sufficient  to 
charge  the  party  notified,  though  the  letter  never  should  come 
to  hand.^ 


'  Louisiana  State  Bank  v.  Rowel,  6  Martin  (La  ),  N.  S.,  506. 
'  Fish  V.  Jackman,  19  Me.,  467. 

'  Lindenberger  v.  Beall,  6  Wlieat,  104;  Mann  v.  Baldwin,  6  Mass.,  316; 
Shedc.  Bret,  1  Pick.,  401. 


MANNER    AND    MODE.  393 

§883.  Office  to  which  Party  Usually  Resorts.  —  Generally  the 
notice  should  be  sent  to  the  postoffice  nearest  to  the  party 
notified,  but  this  is  not  an  inflexible  rule.  The  object  of  the 
law  being  to  communicate  the  knowledge  within  a  reasonable 
time,  that  the  instrument  has  been  dishonored,  it  will  be  suffi- 
cient if  the  notice  is  sent  to  the  office  to  which  the  party 
usually  resorts  for  his  letters.^ 

§  884.  General  Adoption  of  Service  by  Mail.  —  Xo  little  contro- 
versy has  arisen,  and  some  contrariety  of  opinion  has  been 
expressed  by  the  courts,  in  construing  the  requirements  of 
the  law  in  regard  to  the  postoffice  to  which  the  notice  of  dis- 
honor should  be  sent  in  cases  pointed  out  by  precedent  as 
proper  ones  for  service  by  that  mode.  Where,  however,  it 
could  be  ascertained  that  there  was  a  postoffice  reasonably 
near  the  residence  of  the  party  notified,  at  which  he  was 
accustomed  to  receive  his  letters,  the  cases  have  been  rare  in- 
deed where  it  was  held  that  any  other  mode  of  service  than 
that  by  mail  should  have  been  employed, 

§885.  Exceptional  Case. — However,  the  case  of  Nashville 
]3ank  v.  Bennett,'^  seems  to  ignore  the  rule  followed  elsewhere, 
and  to  set  up  a  standard,  to  attempt  to  follow  which  would 
lead  to  endless  confusion.  The  defendant  was  indorser  of  a 
note  payable  at  a  bank  in  Murfreesboro.  Payment  being 
refused  at  maturity,  notice  of  protest  was  placed  in  the  post- 
office,  addressed  to  the  indorser,  and  directed  to  Jefferson  in 
the  same  county,  where  a  postoffice  was  kept,  and  about  two 
and  a  half  or  three  miles  from  which  the  indorser  resided. 
His  residence  was  eleven  miles  from  the  place  of  dishonor,  and 
Jefferson  was  his  nearest  postoffice.  There  was  no  evidence 
showing  whether  or  not  he  was  in  the  habit  of  receiving  his 
letters  there.  The  court,  however,  seemed  to  take  judicial 
notice  of  the  fact  that  Murfreesboro  was  a  more  important 

'Tiiums®.Delisle,5Blackf.,447;Reidt).  Payne,  16  Johns.,  218;  Rcmer 
V.  Downer,  23  Wend.,  620;  Bank  of  Geneva  o.  Hovvlett,  4  Wend.,  323;  Ilazle- 
ton  Coal  Co.  v.  Ryerson,  20  N.  J.  L.,  129;  B'k  of  Columbia  v.  Lawrence,  1 
Pet.,  578. 
'  1  Yerg.  (Tenn.),  166. 


39i  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

trading  point  than  Jefferson,  and  so  held  that  the  notice  was 
not  well  served,  but  should  have  been  delivered  to  defendant 
in  person,  or  left  at  his  domicile  or  place  of  business,  and  even 
seemed  to  intimate  that  it  would  have  been  better  to  have 
directed  the  letter  to  the  indorser  at  Murfreesboro.  The  rea- 
sons assigned  for  deciding  the  case  in  this  manner  were  that 
"the  means  or  mode  adopted  of  giving  the  notice  was  not  the 
best  reasonably  within  the  power  of  the  party  giving  it;  but  a 
mode  circuitous,  doubtful  in  effect,  and  overlooking  without 
necessity  the  best  kind  of  service,  to- wit ,  personal  service."^ 

§  886.  Necessity  of  a  Rule.  —  It  would  be  rather  a  capricious 
rule  to  require  a  holder  of  commercial  paper,  in  every  instance, 
to  choose  what  was  absolutely  the  best  mode  of  serving  a 
notice  of  dishonor.  It  would  be  unjust  to  compel  him  to  exer- 
cise his  independent  judgment  in  selecting  one  of  several 
modes,  and  then  make  no  allowance  for  his  good  faith,  in  case 
his  judgment  should  prove  erroneous.  It  would  surround 
transactions  in  negotiable  instruments  with  such  hazards  as 
few  would  be  willing  to  assume,  to  impose  upon  an  innocent 
indorsee  in  whose  hands  the  instrument  happened  to  be  when 
payment  was  refused,  not  only  the  duties  of  good  faith  and 
diligence  in  notifying  the  indorser  upon  whom  he  relied,  but 
to  require  him,  at  his  peril,  to  exercise  the  dangerous  discre- 
tion of  electing  which  mode  of  notification  he  would  adopt, 
and  then  hold  that  discretion  subject  to  review  by  a  court, 
hampered  by  no  fixed  rule  of  preference  for  one  mode  of  giving 
notice  over  another.  To  hold  simply  that  the  best  mode  "  reas- 
onably within  the  power  of  the  party  giving  it,"  must  be 
adopted,  is  to  abandon  all  rules  by  which  the  best  mode  may 
be  determined,  and  leave  it  entirely  at  the  discretion  of  the 
giver  of  the  notice.  The  logical  corollary  of  such  a  deduction 
would  be  that  this  discretion  once  exercised  could  only  be  im- 
peached for  mala  fides. 

'  In  considering  the  above  decision  one  cannot  avo'd  the  conclusion  that 
there  must  have  been  in  possession  of  tlie  court,  a  knowledge  ol'  some  facts 
that  could  not  properly  appear  in  the  evidence. 


MANNER    AND    MODE.  395 

§  887.  DifFerent  Offices  in  Same  Town.  — One  of  the  features  of 
what  may  be  regarded  as  the  rule  by  which  parties  giving 
these  notices  are  governed,  is  fairly  illustrated  by  the  case  of 
Roberts  v.  Taft.^  There  the  notice  was  seasonably  sent  by 
mail  to  the  indorser,  directed  to  T,  the  principal  postofRce  of 
the  town  in  which  he  lived.  But  the  indorser  re-ided,  and 
usually  received  his  letters,  at  West  T,  another  postoffice  in  the 
same  town.  The  holder  by  whom  the  letter  containing  the 
notice  was  sent,  knew  where  the  indorser  lived,  and  also  knew 
that  there  was  a  postoffice  at  West  T.  Under  these  circum- 
stances it  w^as  very  justl}^  held  that  by  the  delay  the  indorser 
was  discharged  from  liability. 

§  888.  General  Direction  to  Town  Prima  Facie  Sufficient.  —  But 
where  there  are  two  postoffices  in  the  same  town  it  is  not 
always  necessary  to  direct  the  letter  containing  the  notice  to  one 
in  particular.  A  general  direction  to  the  town  {&  prima  facie 
sufficient,  and  will  serve  to  charge  the  party  notified,  unless 
he  is  accustomed  to  receive  his  letters  at  a  particular  office,  of 
which  the  sender  of  the  notice  was  aware,  or  might  have 
learned  upon  reasonable  inquiry.^ 

§  889.  Private  Messenger. —  Though  the  usual,  and  in  general 
the  preferable,  mode  of  notifying  antecedent  parties  to  a  bill  or 
note,  of  the  dishonor  of  the  instrument,  where  such  parties 
reside  elsewhere  than  in  the  city  or  village  in  which  payment 
is  refused,  is  by  mail,  yet  there  is  no  imperative  rule  requiring 
the  adoption  of  that  mode.  A  private  messenger  may  be  sent 
with  the  message,  provided  the  employment  of  this  means  in- 
volves no  material  delay,  and,  even  where  the  notice  arrives  a 
little  later  in  the  same  day  than  it  would  by  post,  it  may  still 
be  sufficient.  As  where  the  first  indorser  resided  in  Liver- 
pool, and  a  subsequent  indorser  in  Manchester,  the  bill  being 
dishonored,  notice  thereof  was  duly  received  by  the  subsequent 
indorser  on  the  twenty-fourth,  and  on  the  same  day  was  sent  by 
a  special  messenger  to  the  Liverpool  agent  of  such  subsequent 

1 120  Mass.,  1G9. 

'^  Morton  v.  Westcott,  8  Cush.,  425. 


306  NOTICE    OF    DISIIONOK    OF    COMMERCIAL    PAPER. 

indorser.  It  arrived  at  Liverpool  on  the  twenty-fifth.  The 
ordinary  business  hours  for  merchants  were  as  late  as  eight  or 
nine  o'clock  in  the  evenino',  and  the  asrent  of  tlie  Manchester 
party  called  upon  the  Liverpool  indorser  about  6  o'clock,  P. 
M..  of  the  day  on  which  he  received  the  notice,  but  found  no 
one  at  his  counting-house  with  whom  the  notice  could  be  left. 
The  twent^'-sixth  was  Sunday,  and  the  first  indorser  did  not 
actually  receive  notice  until  the  twenty-seventh.  This  was 
held  sufiicient  to  charge  him  because  the  subsequent  indorser 
had  used  due  diligence,  and  was  not  required  to  lay  aside  all 
other  business  in  order  to  notify  the  antecedent  party  at  the 
earliest  possible  Iiour  of  the  day ;  but  he  had  done  all  that 
was  incumbent  upon  him,  by  sending  the  notice  so  that  it 
arrived  on  the  day  following  that  upon  which  payment  was 
refused,  in  time  for  delivery  during  business  hours.^ 

§  890.  Addressed  to  Residence  or  Business  Place  when  Known. — 
But  the  service  of  notice  by  mail,  is  as  we  have  seen,  much 
the  better  for  the  party  giving  it,  both  as  to  safety  and  con- 
venience, where  the  parties  reside  apart  at  such  a  distance 
as  to  authorize  notification  through  the  post;  yet  in  sending  a 
communication  of  this  kind,  care  should  be  taken  to  direct  to 
the  party  to  be  notified  at  his  place  of  residence  or  business, 
if  either  be  known,  or  to  the  postoflice  nearest  such  residence 
or  place  of  business.  It  will  not  sufiice  that  it  is  sent  to  the 
office  where  the  party  may  be  found,  unless  it  comes  promptly 
to  hand,  or  is  sent  to  the  place  designated  in  the  bill  or  note."^ 

g  891.  3Iust  be  Addressed  to  Place  of  Business.  —  So  where  a 
a  note  made  in  Cincinnati,  payable  generally,  and  the  indorser 
resided  in  Indiana,  but  when  the  note  matured  was  in  the  city 
of  Washington,  D.  C,  notice  sent  by  the  post  to  him  at  the 
latter  place  was  held  not  well  served.^ 

§  892.  Indorser  may  be  Notified  at  Place  he  Pretends  to  Reside. 
—  But  when  the  indorser  holds  himself  out  to  the   world   as 


'  Bancroft  v.  Hall,  1  Holt  (X.  P.),  470. 
-  Story  on  Prom.  Notes,  ^  343  et  seq. 
'■>  Burrows  v.  Hannegan,  1  McLeau,  309. 


MANNER    AND    MODE.  307 

resident  at  a  particular  place,  in  case  of  dishonor  of  the  instru- 
ment indorsed  by  him,  and  notice  is  regularly  sent  to  such 
pretended  place  of  residence,  lie  will  be  estopped  to  deny  that 
it  is  his  true  place  of  abode,  though  he,  in  fact,  resides  else- 
where, and  the  party  giving  the  notice  has  made  no  particular 
inquiry  in  order  to  learn  whether  he  lived  at  the  place  to  which 
the  notice  was  directed  or  not.^ 

§893,  Exception  to  Cases  where  Mail  most  Convenient  Mode. — 
A  very  obvious  exception  to  the  cases  where  notice  must  be 
sent  by  mail  to  the  place  of  residence  of  the  party  to  be  noti- 
fied, or  even  where  such  would  be  the  most  prudent  or  expe- 
ditious mode,  would  be  where,  at  the  time  the  paper  goes  to 
protest,  circumstances  have  rendered  personal  notice  quite  as 
convenient  as  notice  by  mail.  As  in  the  case  of  Miles  v.  Hall,^ 
where  the  indorser  was  temporarily  at  the  place  of  payment, 
lying  ill  at  the  house  of  the  notary  who  undertook  to  serve 
the  notice.  It  would  have  been  sufficient  to  charge  him  with 
notice,  to  have  communicated  the  facts  by  means  of  a  letter 
directed  to  him  at  his  residence;  but  the  notary  undertook  to 
serve  the  notice  personally,  which  he  did  by  entering  the  sick 
room  of  his  guest,  and  while  there  informed  him  of  the  con- 
tents of  the  written  notice,  which  he  placed  upon  the  mantel- 
piece. The  court  lield  that  the  notary  proceeded  properly  in 
giving  personal  notice,  which  was  always  the  best,  and  in  this 
instance  was  given  in  the  most  effectual  mode  practicable 
under  the  circumstances. 

§  894.  When  Holder  may  Choose  between  Places.  —  In  those 
cases  that  seem  to  be  the  best  considered,  the  most  consistent 
with  each  other,  and  in  harmony  with  the  doctrines  of  the  law 
merchant,  the  giv^er  of  the  notice  is  not  required  to  discrimi- 
nate with  nicety  between  places,  when  there  are  several  which 
seem  to  be  equally  available.  As  when  the  party  to  be  noti- 
fied resides  in  two  or  more  places  alternatel}^;  or  when  he 
resides  in  the  country,  and  receives  his  letters  from  two  differ- 

'  Lewiston  Falls  Bk.  v.  Leonard,  43  Me ,  144. 
nS  Sin.  &  Marsh.,  332. 


398  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

cut  offices,  without  seeming  to  give  a  decided  preference  to 
either;  or  when  he  resides  near  one  postoffice  and  carries  on 
business  in  the  neighborhood  of  another,  receiving  his  mail 
matter  sometimes  at  the  former  and  at  other  times  at  the 
latter.^ 

§  895.  Illustration  of  above.  —  In  one  case,  where  the  party 
resided  and  carried  on  business  in  separate  places,  at  each  of 
which  there  was  a  postoffice,  and  he  had  a  box  at  the  one  in  the 
village  where  he  carried  on  business,  though  he  received  occa- 
sional letters  at  the  other,  it  was  held  that  a  notice  sent  to  the 
one  where  he  had  a  box,  and  where  he  conducted  his  business, 
was  projjerly  served,- 

§896.  Contra. — But  in  another  case,  it  was  decided,  where 
there  was  evidence  that  the  indorser  received  letters  by  mail  at 
two  separate  offices,  at  one  of  which  he  had  a  box,  that  notice 
was  not  properly  served  when  directed  to  the  office  where  he 
had  the  box,  because  the  other  was  nearest  his  residence.^  Out- 
side of  the  jurisdiction  where  this  case  was  decided,  the  courts 
would  hardly  be  inclined  to  adopt  it  as  an  authoritj",  for  the 
reason  that  it  gives  undue  importance  to  the  matter  of  dis- 
tance. 

§897.  Distance  Made  the  Governing  Fact. —  In  still  another 
case,  by  the  same  court,  however,  the  lines  are  drawn  with 
even  greater  strictness.*  There  the  indorser  to  whom  notice 
was  sent  resided  in  the  parish  of  C,  in  which  there  was  no 
postoffice  ;  so  he  received  his  letters  at  IST.  and  R.,  as  it  hap- 
pened, without  seeming  to  prefer  either.  The  case  was  allowed 
to  turn  entirely  upon  the  question  of  contiguity.  The  letter 
Containing  the  notice  M-as  addressed  to  the  indorser  at  N.,  and 
the  distance  from  the  residence  of  the  indorser  to  !N^.  and  R. 
respectively  was  so  nearly  the  same  as  to  require  the  testimony 
of  witnesses  to  determine  which  was  the  nearer  of  the  two. 


1  Infra. 

^  ^Montgomery  County  Bk.  v.  Marsh,  7  N.  Y.,  481. 

^  Mechanics'  &  Traders'  Bk.  of  New  Orleans  v.  Comptou,3  Rob.  (La.),  4. 

■*  Nicholson  v.  Marders,  3  Rob.  (La.),  243. 


MANNEK    AND    MODE.  399 

So  trifling  was  the  difference  of  distance,  in  fact,  tliat  the  wit- 
nesses called  by  the  parties  to  settle  the  important  point  failed 
to  agree — some  swearino^  in  favor  of  JS[.,  and  others  declaring 
quite  as  positivel_y  for  R.  Tlie  matter  being  thus  evenly  bal- 
anced, the  court  held  that  Tl.  was  the  postoffice  to  which  the 
notice  should  have  been  sent,  because  the  greatest  number  of 
witnesses  said  that  it  was  nearest  to  indorser''s  house,  and 
therefore  tlie  indorser  was  discharged  for  want  of  notice.^ 

§898.  Criticism  of  Foregoing— True  Rule.  —  It  is  difficult  to 
determine  which  of  the  two  cases  last  cited  is  most  at  fault. 
If  the  latter  is  open  to  criticism  for  adopting  the  most  arbi- 
trary and  unsatisfactory  rule  of  evidence,  in  order  to  settle  a 
question  of  no  value  in  determining  the  rights  of  the  parties, 
with  no  better  end  to  subserve  than  the  discharge  of  a  party 
from  a  just  obligation,  the  former,  by  deciding  the  same  ques- 
tion upon  evidence  of  a  higher  grade,  established  the  bad  pre- 
cedent. In  deciding  the  latter  case,  the  court  found  itself 
trammeled  by  the  rule  already  declared,  and  could  not  feel  jus- 
tified in  regarding  the  fact  that  the  party  received  his  letters 
from  both  offices  alike,  as  of  any  special  significance,  when  the 
precedent  case  put  the  same  state  of  facts  aside,  because  there 
was  anotlier  office  nearer  at  hand  than  the  one  to  which  the 
notice  was  sent.  The  true  rule,  both  upon  principle  and 
authority,  is  that  the  notice  is  sufficiently  served,  with  respect 
to  the  postoffice  to  which  it  is  addressed,  if  sent  to  that  one 
wliich  is  nearest  to  the  residence  of  the  party  notified,  or  at 
which  he  ordinarily  receives  his  letters.  The  citation  of  these 
cases,  however,  may  be  justified  upon  tlie  ground  that  they 
illustrate  the  subject  here  treated,  by  showing  what  is  not  the 
law.      In  this  way,  if  no   other,  they  may  become  useful. 

§899.  To  Principal  Office  of  Parish. — But  where  the  notice 
was  addressed  to  an  indorser  at  the  principal  postoffice  of  the 

•To  follow  this  case  as  a  precedent  might  seriously  embarrass  the  holder 
of  dishonored  commercial  paper.  In  exceptional  cases,  like  the  above,  it 
would  probably  be  less  expensive  to  serve  the  notice  personally  than  it 
•would  be  to  ascertain  beyond  peradventure  which  one  of  two  or  more  offices 
was  nearest  the  residence  of  the  pariy  Xo  he  notified. 


400  NOTICE    OF   DISHONOR    OF    COMMERCIAL    PAPER. 

parisli  in  which  he  had  his  residence,  it  was  held  prima  Jhc/e 
sufficient,  and  cast  upon  snch  indorser  the  burthen  of  showing 
in  defense  that  there  was  another  postoffice  nearer  to  his  resi- 
dence.^ 

§  900.  To  County  Seat.  —  So  it  was  held  when  the  notice  was 
directed  to  the  county  seat  of  the  county  in  which  the  party 
resided,  designating  the  particular  locality  in  the  county,  that 
it  was  properly  sent,  though  the  county  seat  was  nine  miles 
from  the  residence  of  the  indorser,  and  there  was  another  office 
within  half  a  mile  of  his  house.^ 

§  901.  To  Principal  Office  of  Town.  —  So,  also,  has  it  been  decid- 
ed that  though  there  were  several  postoffices  in  the  town  in 
which  the  indorser  had  his  residence,  a  letter  containing  the 
notice  addressed  to  the  town  postoffice  was  sufficient,  notwith- 
standing one  of  the  otlier  offices  was  nearer  his  residence.^  This 
case  seems  to  go  to  the  very  extreme  of  liberal  construction  in 
order  to  preserve  the  liability  of  indorsers  of  commercial 
paper.  It  is  maintained  that  the  holder  residing  in  a  different 
town  is  not  supposed  to  be  able  to  learn  at  which  of  several 
postoffices  the  indorser  receives  his  mail,  so  he  is  not  required 
to  inquire  further  than  for  the  town  at  which  the  indorser 
resides.'' 

§  902.  Sliould  be  Inquiry  3Ia(le. —  The  case  cited  above  declares 
the  doctrine  more  broadly  tlian  it  will  be  sustained  by  the  weight 
of  authority.  In  many  instances,  no  doubt  notice  sent  to  a 
drawer  or  indorser,  directed  to  the  town  where  he  resided 
would  be  sufficient  even  though  there  are  other  offices  in  the 
same  town;  but  the  holder  would  not  be  justified  in  sending 
such  notice  without  the  slightest  inquiry,  and  would  certainly 
not  be  protected  if  he  knew  that  there  were  several  offices  in 
the  same  town,  and  had  cause  to  belie^•e  that  reasonable  in- 
quiry would  enable  him  to  discover  at  which  one  the  indorser 


'  Yeatman  v.  Erwin,  5  La.,  2G4. 
'^  Weakly  v.  Bell,  9  Watts,  273. 
'  Bank  of  Manchester  v.  Slason,  13  Vt.,  334. 


MANNER    AND    MODE.  401 

would  be  most  likely  to  receive  a  communication  by  mail.  It 
is  true  that  notice  directed  to  the  town,  generally,  is  prima 
facie  sufficient,  but  its  sufficiency  may  be  rebutted  by  proof 
that  the  indorser  received  his  letters  at  one  office  in  particular, 
and  that  the  holder  might  have  ascertained  this  fact  by  proper 
inquiry.^ 

§  903.  Proper  Inquiry  for  Residence  in  Another  Town.  —  So  in 
one  case  the  notary  who  had  protested  the  note,  inquired  of  the 
cashier  of  the  bank  by  which  he  was  employed  for  the  resi- 
dence of  the  indorser,  and  was  told  that  it  was  H.  This  was  a 
town  in  which  there  were  two  postoffices,  one  of  which  was 
situated  at  North  H,  about  three  miles  nearer  the  residence  of 
the  indorser  than  the  other,  and  was  the  office  at  which  he 
usually  received  his  letters.  The  notary  was  not  aware  of 
these  facts,  nor  that  there  were  two  postoffices  in  the  town  of 
H,  but  sent  the  letter  containing  the  notice  directed  to  the 
town,  generally,  and  the  court  held  this  sufficiently  served  to 
bind  the  indorser.'^ 

§  904.  Sufficient  Inquiry  Question  for  Jury.  —  It  has  been  de- 
cided where  the  notice  was  addressed  to  the  town  generally, 
and  there  were  several  postoffices  in  the  town,  that  it  was  a 
question  for  the  jury  whether  sufficient  care  was  exercised  in 
forwarding  the  notice,  to  render  it  effective  and  binding  upon 
the  party  notified.^  Between  inhabitants  of  the  same  town, 
but  different  villages,  as  we  have  already  seen,*  the  notice  may 
be  sent  by  mail.^ 

§  905.  Transient  Indorser. — When  the  indorser  resides  alter- 
nately at  two  places,  going  from  one  to  the  other,  notice  directed 
to  him  at  either,  will,  in  general,  be  sufficient.*^  So,  when  the 
indorser  had  no  fixed  place  of  residence,  and  the  l)ill  was  dated 

'Morton  v.  Wcstcott,  8  Gush.,  425;  Downer  v.  Remer,  21  Wend.,  10; 
Roberts  v.  Taft,  120  Mass.,  169. 

■■*  Cabot  Bank  v.  Russell,  4  Gray,  1«7. 
•■'  Downer  v.  Remer,  21  Wend.,  10. 
*  Ante. 

"  Ransom  v.  Mack,  2  Hill,  587. 

« Exch.  &  Ranking  Co.  of  N.  O.  v.  Boyce,  3  Riob-  (La.),  307. 
26 


402  NOTICE    OK    DISIIOXOR    OF    COMMERCIAL    PAPER. 

at  a  hotel,  proof  that  the  notice  was  sent  to  such  hotel  and 
received  by  the  indorser's  wife,  was  held  sufficient.^ 

§906.  Temporary  Ab!>de  not  Residence.  — But  the  fact  that  a 
party  to  a  bill  or  note  resides  a  portion  of  the  year  at  a  particular 
place,  will  not  constitute  that  his  place  of  residence,  so  as  to 
render  him  chargeable  with  notice  of  non-acceptance  or  non- 
payment, when  it  is  directed  to  him  at  the  postoffice  of  such 
place. ^ 

§907.  Member  of  Congress.  —  And  the  mere  fact  that  the 
indorser  is  known  to  be  a  member  of  congress  is  not  suffi- 
cient to  warrant  sending  notice  through  the  mail  addressed  to 
him  at  Washington,  D.  C, — especially  when  he  is  known  to 
have  a  residence  in  the  state  he  represents;  though,  if  he  have 
no  fixed  place  of  abode,  notice  addressed  to  him  at  Washing- 
ton would  suffice.^  It  has  been  held,  however,  that  notice  of 
this  kind  was  not  well  served  upon  a  member  of  congress, 
even  during  the  session  of  that  body,  by  leaving  it  inclosed  in 
a  letter  addressed  to  him  in  the  ])Ostoffice  of  the  house  of 
which  he  was  a  member,  unless  it  was  actually  received.^ 

§  908.  Last  Known  R^^sidence,  when  Sufficient. — When  by  the 
exercise  of  proper  diligence  the  holder  is  unable  to  ascertain 
the  present  residence  of  the  party  to  be  notified,  he  may  direct 
the  letter  containing  the  notice  to  him  at  his  last  known  place 
of  abode.  In  such  case  it  maij  reach  the  party  for  whom  it 
was  intended  by  being  forwarded  ;  but  whether  it  does  or  not, 
the  holder  has  done  all  that  co.uld  reasonably  be  expected  of 
him.' 

§909.  Diligent  Inquiry  for  Unknown  Residence. — But  when 
the  residence  of  the  party  to  be  notified  is  unknown  to  the 
part}''  whose  duty  it  is  to  giv^e  such  notice,  the  latter  will  not 
be  excused  merely  because  of  sucll  lack  of  knowledge.     He 

'  Wharton  v.  Wright,  1  Carr.  &  Kir.,  585. 
»  Ruayan  v.  Montfort,  Busb.  (N.  C),  371. 

'Walkers.  Tunstall,  3  How.  (Miss.),  259;  Tuustall  y.  Walker,  2  Sm.  & 
Marsh.,  638. 

*  Hill  c.  Norvell,  3  McLean,  583. 

*  Wilson  V.  Senier,  14  Wis.,  380. 


MANNER    AND    MODE.  403 

ought  to  make  diligent  inquiry — particularly  of  tlie  other 
parties  to  the  bill  when  known  to  him.  And  for  a  failure  to 
make  such  inquiries  in  a  case  where  the  only  party  known  to 
the  holder  lived  at  a  distance  of  seventy  miles,  the  court  held 
that  the  indorser  was  discharged  because  the  holder  might 
have  communicated  with  the  known  party  by  letter,  and  thus 
have  learned  the  place  of  residence  of  the  indorser  sought  to 
be  charged.^ 

§  910.  Inclosing  Notices  to  All,  to  Last  Indorser. — Where  there 
are  several  indorsers  of  a  note,  or  indorsers  and  drawer  of  a 
bill,  and  the  last  indorser  only  is  known  to  the  holder  in  whose 
hands  the  instrument  is  dishonored,  it  is  a  common  practice  to 
inclose  the  notices  to  all  antecedent  parties  in  a  letter  notify- 
ing the  last  indorser.  This,  however,  will  not  suffice  to  charge 
them  with  notice,  unless  the  inclosures  are  promptly  forwarded 
to  the  several  parties  to  the  instrument.  In  the  case  of  Shel- 
burn  Falls  National  Bank  v.  Townsley,^  where  the  antecedent 
party  resided  in  the  same  place  as  the  party  to  whom  the  no- 
tice was  sent  inclosed,  it  was  held  that  a  drop  letter  containing 
such  notice  should  have  been  placed  in  the  office  on  the  same 
day  it  was  received.  And  where  the  antecedent  parties  reside 
in  another  place,  the  notices  intended  for  them  should  be 
promptly  forwarded  to  the  proper  postoffice  of  each.^ 

§  911.  Transitory  Place  of  Bnsiness.  —  As  notice  left  at  the 
place  of  business  of  resident  parties  is  equally  as  efficacious  as 
when  left  at  the  residence,  so  is  the  same  option  allowed  in 
giving  notice  by  means  of  the  post,  where  the  relative  situa- 
tion of  the  parties  is  not  such  as  to  require  personal  notice; 
but  the  mere  presence  of  the  party  in  any  particular  })lace 
engaged  in  the  transaction  of  business,  when  such  business  is 
transitory  and  the  party  is  only  temporarily  located  at  the 
place,  for  the  purpose  of  disposing  of  his  property  there,  or  the 
like,  will  not  constitute  that  his  place  of  business,  so  that  he 
may  be  safely  notified  l)y  a  letter  addressed  to  him  there.* 

'  Hill  V.  Varrell,  3  Me.,  23:j. 

« 103  Mass.,  177. 

•  Stix  V.  Mathews,  «a  Mo.,  371 

*  Walker  v.  Stetson,  14  Ohio  St.,  89. 


404  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

§912.  By  Mail  when  Holder  and  Indorser  are  Fellow-Townsmen. 

—  It  will  often  happen  that  the  holder  of  a  bill  or  note  and 
his  immediate  indorser  or  the  drawer,  may  be  residents  of  the 
same  place,  and  still  the  notice  of  dishonor  may  be  trans- 
mitted by  mail,  and  the  proof  of  its  having  been  properly  ad- 
dressed, and  posted  in  due  time,  will  be  sufticient  to  charge 
the  party  so  notified.  As  when  the  holder  and  indorser  of  a 
bill  of  exchange  were  residents  of  Montgomery,  and  the  bill 
was  drawn  on  Mobile,  where  it  was  sent  to  an  agent  of  the 
holder  for  presentment,  and  on  pa3'ment  being  refused,  notice 
thereof  was  sent  by  post  to  the  indorser  at  Montgomery;  this 
was  held  sufficient,  for  the  reason  that  the  agent  sending  it 
stood  in  the  place  of  the  real  holder.^ 

§  913.  Agent  of  Holder,  to  Indorser  in  Same  Place.  —  So  has 
it  been  held,  where  the  agent  for  collection  and  the  party  to 
be  notified  reside  in  the  same  place,  but  the  actual  holder  re- 
sides elsewhere,  that  the  notice  may  be  sent  in  this  manner  by 
the  agent  to  the  indorser,  with  the  same  efiect  as  though  they 
lived  in  separate  post  towns.  The  reason  for  this  holding  was 
that  as  the  agent  might  have  given  notice  by  mail  to  his  prin- 
cipal, and  he  in  the  same  manner  to  the  indorser,  it  would  be 
requiring  an  act  useless  in  itself,  but  one  which  would  involve 
delay,  to  compel  the  agent  to  adopt  this  circuitous  mode  of 
notification.^ 

§  914.  Circiiitons  Xotiee  bj-  Mail  between  Residents  of  Same  Place. 

—  It  is  competent  for  successive  indorsers  to  give  notice,  after 
receiving  it,  to  their  own  immediate  indorsers,  and  so  on  to  the 
last  indorser  or  drawer,  and  when  their  immediate  indorsers 
live  in  another  city  or  village,  the  notification  may  be  by  mail. 
A  modification  of  the  rule  similar  to  that  in  the  case  last  cited, 
growing  out  of  a  series  of  indorsements  of  a  bill  of  exchange,  is 
exemplified  in  the  case  of  Eagle  Bank  v.  Hathaway.^  The  bill 
was  payable  in  Philadelphia  to  the  order  of  A,  who  resided  in 

1  Greene  v.  Farley,  20  Ala.,  322. 

^  Gindrat  v.  Mechanics'  Bank  of  Augusta,  7  Ala.,  324.     See,  also,  Pliilipe 
V.  Harberlee,  45  Ala.,  597. 
*5  Mete.,  212. 


MANNER    AND    MODE.  405 

P'"ovidence,  A  indorsed  it  to  a  bank  in  Providence,  by  wliicli 
bank  it  was  indorsed  and  transmitted  to  a  bank  in  Kew  York 
for  collection.  The  New  York  bank  indorsed  and  transmitted 
it  for  collection  to  a  correspondent  in  Philadelphia,  by  whom 
it  was  presented,  and  not  being  paid,  notice  was  duly  forward- 
ed by  mail  to  the  New  York  bank  inclosing  notices  to  prior 
indorsers.  The  JS^ew  York  bank  forwarded  notice  in  the  same 
maimer  to  the  Providence  bank,  by  whom  the  notice  to  A  was 
deposited  in  the  postoffice  of  that  city,  addressed  to  him.  It 
was  held  that  as  the  notice  might  have  been  sent  to  A  by  mail 
from  PJiiladelphia  or  New  York,  the  Providence  bank  being 
merely  a  conduit  for  the  transmission  of  notice,  and  that  if  the 
indorser  had  been  anticipating  notice  of  dishonor  he  would 
have  looked  for  it  through  the  postoffice,  the  notice  was  suffi- 
cient to  bind  him,  though  it  might  have  been  personally 
served. 

§  915.  Designated  Place  of  Payment — Inquiry.  —  Merely  depos- 
iting a  letter  containing  the  notice  in  the  office,  addressed  to  the 
indorser,  at  the  place  where  the  note  is  made  payable,  will  not 
suffice,  unless  the  holder  has  exhausted  every  means  of  infor- 
mation as  to  the  residence  of  the  party.  Inquiry  at  the  bank 
and  an  examination  of  the  city  directory  would  not  suffice 
when  inquiry  might  have  been  made  of  other  parties  to  the 
bill.^ 

§  916.  Put  upon  Inquiry.  —  As  wliere  the  holder  had  been 
informed  that  the  indorsei"  lived  on  Long  Island,  that  was  suf- 
ficient to  put  him  upon  inquir\^,  and,  in  the  absence  of  coun- 
tervailing evidence,  sufficient  to  warrant  him  in  believing  that 
such  party  lived  in  the  City  of  New  York,  notice  sent  him  at 
the  latter  place  would  not  be  sufficient.""^ 

§917.  Insufficient  Inquiry.  —  It  has  been  held  that  inquiry 
made  by  a  notai'y,  in  a  bar-room,  and  on  the  street,  for  the  res- 
idence of  a  business  man   in   a  neighboring  village,  when  he 

'  Gilchrist  r.  Donnell,  53  Mo.,  591.  See,  also,  Barret  v.  Evans,  38  Mo., 
331 ;  Chapcott  v.  Curlcwis,  2  Moody  &  Rob.,  484. 

s  Randall  v.  Smith.  U  Burb.,  452.    See  Granite  Bk.  v.  Ayers,  16  Pick.,  393. 


406  NOTICK    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

received  no  infcniatioii  in  answer  to  his  inquiries,  would  not 
warrant  him  in  sending  the  notice  to  the  phice  wliere  the  note 
was  dated  without  further  inquiry.^ 

^918.  Sending  Notice  to  where  Instrument  Dated  Insufficient.  — 
j^s^or  is  the  mere  sending  of  the  notice  by  mail,  directed  to  the 
drawer  of  a  bill  at  the  place  where  the  instrument  is  dated, 
sufficient  to  charge  such  drawer  with  notice,  in  the  absence  of 
satisfactory  proof  that  it  was  received  there  in  due  course  of 
mail.^ 

§  919.  Inquiry  of  Maker  Insufficient.  —  So,  where  the  holder  of 
a  dishonored  note  made  inquiry  of  the  maker,  and,  on  being 
advised  by  him  to  send  the  notice  to  the  indorser,  directed  to 
him  at  C,  and  the  holder  acted  upon  the  advice  without  fur- 
ther in(|uiry,  though  there  was  a  postoffice  much  nearer  than 
C,  to  the  indorser's  residence,  it  was  held  to  be  an  act  of  cul- 
pable negligence  on  the  part  of  the  holder  to  rest  content  with 
the  information  obtained  upon  such  inquiry,  and  the  indorser 
was  discharged.^ 

§  920.  Actino-  on  Information  from  One  of  the  Parties  Sufficient. 
— But  where  the  note  was  held  by  a  bank,  and  one  of  the  par- 
ties thereto  gave  the  direction  to  the  cashier,  where  letters 
should  be  sent  to  reach  the  indorser,  and,  acting  on  such  advice, 
the  cashier  sent  the  notice,  according  to  such  direction,  to  a 
town  in  which  there  were  four  postoffices,  without  addressing 
the  letter  to  either  in  particular,  such  notice  was  held  suffi- 
cient, though  the  office  bearing  the  name  of  the  town  was  nine 
miles  from  the  residence  of  the  indorser.^ 

§  921.  Inquiry  of  Drawer.  —  So,  where  the  holder  applied  to 
the  drawer  of  a  bill  for  information  as  to  the  residence  of  the 
indorser,  it  was  held  that,  as  the  drawer  was  one  in  whom  the 
indorser  had  reposed  confidence,  the  holder  had  a  right  to 
expect  a  correct  answer  from  him,  in  relation  to  the  matter 
which   had   called    forth    such  expression   of  confidence,  and 

'  Spencer  v.  Bank  of  Salina,  .3  Hill,  520. 

«  Lowery  v.  Scott,  24  Wend.,  358;  Sprague  v.  Tyson,  44  Ahi.,  :J38. 

2  Davis  V.  Williams,  Peck  (Tenn.),  191;  Woods  c.  Nceld,  44  Peun.  St.,  S6. 

*  CatskUl  Bank  v.  Stall,  15  Wend.,  364. 


MANNER   AND    MODE.  407 

might  safely  rely  upon  it  as  such.^  And  where  the  second 
indorser  was  applied  to  under  like  circumstances,  it  was  held 
that  the  notary  giving  the  notice  might  act  upon  the  informa- 
tion thus  obtained  without  being  chargeable  with  negligence 
though  such  information  proved  to  be  erroneous.^ 

§  922.  Pi-evioasly  Acquired  Knowledge.  —  So  also  has  it  been 
adjudged  sufficient  diligence  where  the  holder  acted  upon  his 
own  previously  acquired  knowledge  of  the  residence  of  the  in- 
dorser, and  directed  the  notice  accordinglj^,  though  by  reason 
of  a  subsequent  cliange  of  domicile  of  which  the  holder  had  no 
knowledge,  the  party  so  notified  may  have  failed  to  receive  the 
letter  in  time.^ 

§  923.  Former  Conumiuioatioiis.  —  Where  a  letter  containing 
notice  of  the  dishonor  of  negotiable  paper,  addressed  to  the 
indorser  at  the  town  of  B  generally,  was  received  and  responded 
to  without  objection,  a  subsequent  notice,  directed  to  him  in  the 
same  manner,  by  the  same  notary  who  was  informed  that  he 
still  lived  at  B,  was  held  sufficient,  though  there  were  several 
postoffices  in  B,  none  of  which  were  of  the  same  name  as  the 
town,  and  notwithstanding,  also,  that  the  indorser  had  removed 
from  the  town  since  the  receipt  of  the  former  notice.* 

§  924.  Surname  Alone  Insuffitient. — Tlie  notice  may  be  directed 
to  the  proper  place,  and  still  from  the  manner  in  which  it  is 
addressed,  cast  the  burden  of  proving  its  due  receipt  by  the 
party  to  be  charged,  upon  the  party  giving  the  notice.  As 
where  the  letter  is  addressed  to  the  party  merely  by  his  sur- 
name and  is  not  directed  to  his  residence  or  place  of  business 
by  number,  but  to  the  general  delivery  of  a  large  city.^     So, 


'  Bank  of  Utica  v.  Bender,  21  Wend.,  643. 

''Ransom  v.  Mack,  2  Hill,  587;  Harris  i\  Robinson,  4  How.,  336.  See 
to  the  same  purport,  Ilargen  v.  Bemis,  1  Tlionip.  &  C.  (N.  Y.),  460. 

^Bank  of  Utica  v.  Pliillii)s,  3  Wend.,  408;  Bank  of  Utica  v.  Davidson,  5 
Wend.,  587;  Rcid  «.  Payne,  16  .Jolius.,  218;  Itoiiia  *?.  Collins,  51  N.  Y.,  144 
[unless  he  ouglit  to  have  l^nown  of  such  chtinge] ;  Harris  v.  Memphis  Bk., 
4  Humph.,  519. 

*  Saco  National  Bank  «.  Sanborn,  63  Jle.,  340. 

'Walter  v.  Haynes,  By.  &,  Moody,  14'J;  True  c.  Collins,  3  Allen,  438. 


408  NOTICK    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

where  the  notice  was  addressed  to  the  "  estate  "  of  a  deceased 
indorserjin  the  absence  of  proof  of  diligent  inquiiw  for  the 
name  of  the  executor,  this  was  held  insufficient.^ 

§  925.  Delay  Chargeable  to  Imlorser.  —  But  where  the  negli- 
gence which  occasions  the  delay  is  properly  chargeable  to  the 
indorser  himself,  he  must  bear  the  consequences.  As  where 
he  writes  his  name  upon  the  instrnraent  so  illegibly  as  to  mis- 
lead one  not  perfectly  acquainted  with  his  writing,  or  to  leave 
room  for  a  doubt  as  to  the  proper  rendering  of  his  signature, 
the  party  giving  the  notice  will  be  justified  in  relying  upon 
its  appearance  and  addi'essing  the  notification  accordingly."' 

§  926.  Holder  Misled  by  Place  of  Date.  —  So  where  a  bill  was 
drawn  dated  "  London,''  but  not  otherwise  giving  the  address 
of  the  dra\ver,  and  notice  of  its  dishonor  was  addressed  to  the 
drawer  in  the  same  general  way,  it  was  held,  notwithstanding 
the  drawer's  denial  of  receipt  of  notice  and  the  further  fact 
that  ir.quiry  of  the  acceptor  would  have  disclosed  that  he  lived 
at  Chelsea,  there  was  sufficient  evidence  of  diliorence  to  so  to 
the  jurj^,  and  the  court  was  of  the  opinion  that  tlie  notice  was 
sufficient.^  So,  also,  has  a  notice  addressed  to  the  '•  legal  repre- 
sentatives "  of  a  deceased  part}"-  to  a  negotiable  instrument, 
been  held  sufficient.* 

§  927.  Address  Should  Include  Name  of  State.  — But  in  address- 
ing a  letter  containing  a  notice  of  this  sort  to  a  partj^  in  any 
one  of  the  states  of  the  Union,  the  name  of  the  state  should 
always  form  a  part  of  the  direction,  as  there  are  frequently 
places  in  different  states  of  precisely  the  same  name.'' 

§  928.  Wheu  Addre.s.s  Designated  by  Indorser.  —  The  indorser 
has  a  right  to  designate  with  particularity  the  address  to  which 
the  notice  shall  be  sent,  and  nuxke  it  known  to   all  subsequent 

'  Massachusetts  Bk.  v.  Oliver,  10  Cusliing,  557. 

» :Manufafturers'  Bk.  v.  Hazard,  30  N.  Y.,  226. 

'Burmester  v.  Barron,  17  Ad.  &  Ell.  (Q.  B.),  828;  Mann  v.  Moors,  Ry.  & 
Mood.,  249;  Clarke  v.  Sharpe,  3  Mees.  &  Wells.,  1G6. 

••  Pillow  V.  Hardeman,  3  Humph.  (Tenu.),  538 ;  Boyd  «.  ISuviugs  Bk.,  15 
Gratt.,  501. 

'•Beckwith  v.  Smith,  22  Me.,  125. 


MA.NNKR   AND    MODE.  409 

holders  by  writing  the  same  on  the  back  of  tlie  instrument,  in 
conjunction  with  his  indorsen:ient.  And  when  a  place  is  so 
designated,  the  notice  should  be  directed  there,  unless  the 
party  giving  notice  is  aware  of  the  indorser's  removal  subse- 
quent to  his  indorsement.'  In  fact,  should  the  indorserfail  to 
receive  the  notice  in  time,  by  reason  of  its  being  seat  else- 
where than  to  such  designated  address,  he  will  be  discharged.^ 
§929.  Delay  from  Sending  by  Unusnal  Ronte.  —  From  the  lan- 
guage of  the  authorities  already  cited,  as  well  as  upon  princi- 
ple, it  would  seem  that  in  giving  the  notice  through  the  post- 
office,  it  was  not  incumbent  upon  the  person  giving  it  to  select 
an}'  particular  route,  it  being  sufficient  to  post  the  letter  in 
time  to  go  by  the  outgoing  mail.  It  would  also  seem  that 
where  the  giver  of  the  notice  undertakes  to  send  it  by  an 
unusual  route,  or  in  an  unusual  manner,  and  its  receipt  is 
thereby  delayed,  the  indorser  will  be  discharged  from  liability; 
but  it  has  been  held,  when  a  notice  was  sent  by  a  designated 
route,  and  under  cover  to  another,  whereby  its  arrival  was 
delayed  several  days  beyond  the  time  it  would  have  come  to 
hand  under  a  general  direction,  addressed  to  the  indorser  at  his 
place  of  residence,  that  the  notice  was  sufficient,  as  the  notary 
sending  it  mio;ht  choose  the  route,  and  was  not  bound  to  choose 
the  shortest.^  This  case  was  decided,  however,  by  a  divided 
court,  the  better  reason  being  with  the  dissenting  opinion. 
The  case  is  scarcely  entitled  to  be  followed  generally  as  an 
authority. 

'  Peters  v.  Hobl)S,  25  Ark.,  67. 

"Bartlett  v.  Robinson,  39  N.  Y.,  187. 

2  Bank  of  Utica  v.  Smith,  18  Johns.,  230. 


410  NOTICE    OF    DISHONOK    OF    COMMERCIAL    PAPER. 


V.    Waiver  and  Excuse. 


§  930.  General  Character  of  Waiver. 

931.  Division  of  Subject. 

932.  Waiver  may  be  Antecedent  or  Subsequent. 

933.  Antecedent  Waiver  in  Writing. 

934.  EflFect  of  "  Protest  Waived." 

935.  "  I  Waive  Demand  of  Protest." 

936.  Waiver  of  Notice  does  not  Include  Presentment. 

937.  No  Special  Form  Required. 

938.  Waiver  by  Letter. 

939.  May  be  Verbal. 

940.  May  be  Established  by  Circumstances. 

941.  Promise  to  Maker. 

942.  When  Promise  Supported  by  Consideration. 

943.  Indemnity  does  not  always  Waive. 

944.  Note  for  Real  Estate,  Legal  Title  still  in  Grantor. 

945.  Where  Waiver  Depends  on  Sufiiciency  of  Indemnity. 

946.  Indemnity  Taken  for  His  Own  Security 

947.  Illustration  of  Foregoing  Doctrine. 

948.  Indorser  with  Funds  of  Maker  does  not  become  Principal. 

949.  Assignment  to  Trustees  will  not  Excuse. 

950.  Taking  Mortgage  of  all  ^Maker's  Property  held  no  Waiver. 

951.  Indemnity  Stronger  Reason  for  Notice.  ^ 

952.  Illustration. 

953.  Indorsement  of  Renewal  Note. 

954.  Request  no  Waiver  when  not  Acceeded  To. 

955.  Waiver  by  Indorser. 

956.  Conflicting  Views. 

957.  Conditions  of  Waiver  by  Subsequent  Promise. 

958.  Subsequent  Promise  witlunit  Knowledge. 

959.  Promise  Express  and  Implied. 
9G0.  Implied  Promise. 

961.  Promise  to  "See  it  Paid." 

962.  Recitals  in  Contract  Acknowledging  Bill. 

963.  Subsequent  Waiver  must  be  Unequivocal. 

964.  Admissions  to  Strangers  do  not  Amount  to  Waiver. 

965.  Anxiety  to  have  tlie  Bill  Paid  not  Waiver. 

966.  Wliere  Subsequent  Promise  Evidence  of  Notice, 

967.  Subsequent  Promise  a  Waiver. 


WAIVER    AND    EXCUSE.  411 

968.  Even  written  Admission  not  Conclusive. 

969.  Subsequent  Promise  eitlier  "Waiver  or  Admission. 

970.  Onus  Probandi. 

971.  Subsequent  Promise  Prima  Facie  Evidence  of  DiHgence. 
973.  Evidence  of  Knowledge  of  Laches. 

973.  Onus  Cast  upon  the  Holder. 

974.  Principles  Governing  the  Question. 

975.  Knowledge  of  Facts  and  Not  their  Legal  Effect. 

976.  Excuses  of  a  General  Nature  Enumerated. 

977.  Excuses  of  a  Special  Character. 

978.  Inevitable  Accident. 

979.  Prevalence  of  Malignant  Fever. 

980.  Existence  of  War. 

981.  Interdiction  of  Commerce. 

982.  Actual  Hostilities. 

983.  Late  War. 

984.  Interruption  of  Postal  Communication. 

985.  War  where  Note  Payable. 

986.  Not  Excused  if  Intercourse  Legal. 

987.  Loss  of  Note  by  War  no  Excuse. 

988.  Entitled  to  Notice  when  Obstruction  Removed. 

989.  Party  not  Required  to  Violate  Law  of  his  Domicile. 

990.  Due  Diligence. 

991.  Notice  of  Facts  Excusing  Demand. 

993.  Obstructions  Removed— Demand  and  Notice. 

993.  Death  of  Holder. 

994.  Sudden  Sickness  and  Death  of  Agent. 

995.  Sickness  must  be  Sudden  and  Severe. 

996.  Special  E.xcuses  Treated  as  Waiver. 

997.  Bill  Drawn  for  Benefit  of  Drawer. 

998.  Note  for  Accommodation  of  Payee. 

999.  For  Accommodation  of  Drawee  or  Acceptor. 

1000.  Not  Excused  by  Promise  of  Drawer  to  Provide  for  Bill. 

1001.  No  Funds  in  Hands  of  Drawer. 
1003.  Application  of  the  Rule  Confined. 

1003.  American  Cases  Decided  on  Insuflacient  Reason. 

1004.  No  Right  to  Expect  Payment. 

1005.  Drawer  against  Goods  in  Transitu. 

1006.  Opinion  of  Marshall. 

1007.  Illustration. 

1008.  Mere  Existence  of  Credit. 

1009.  Expectation  of  Payment  must  Continue  to  Maturity. 

1010.  Need  not  be  Anticipated  from  Drawee. 

1011.  Promise  from  Drawee. 

1013.  Where  Drawee  lias  Already  Honored  Drafts. 
1013.  Running  Account  between  Parties. 


i:12  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

1014.  Suspecting  Absence  of  Funds,  no  Excuse, 

1015.  Drawer  being  in  Debt  to  Druwee,  no  Excuse. 

1016.  No  Exi-)ectation  of  Funds  at  Place,  no  Excuse. 

1017.  No  Excuse  for  Failing  to  Notify  Indorser. 

1018.  Accommodation  Indorser. 

1019.  Indorser,  with  Notice  of  Facts  Excusing  Notice. 

1020.  Former  Partnership  between  Drawer  and  Drawee,  no  Excuse. 

1021.  Partner  Drawing  upon  his  Firm,  not  entitled  to  Notice. 

1022.  Goods  Purchased  for  Use  of  Firm,  will  not  Excuse. 

1023.  Fraud  by  Indorser  Excuses  Notice. 

1024.  Motives  for  Indorsement  Immaterial. 

1025.  Adding  the  Word  "Suretj\"  no  Excuse. 

1026.  Presence  of  Indorser  when  Payment  Refused,  no  Excuse. 

1027.  Attachment  of  Funds,  no  Excuse. 

1028.  Note  Void  at  Inception,  Notice  Unnecessary. 

§930.  General  Character  of  Waiver. — The  consequences  of  a 
waiver  of  notice  by  an  indorser  or  drawer,  or  of  anything  by 
which  notice  will  be  excused,  are  substantially  the  same.  Tlie 
party  who  otherwise  would  be  entitled  to  notice  of  the  dis- 
honor of  the  bill  or  note,  as  a  condition  precedent  to  the  fixing 
of  his  liability,  by  such  waiver,  or  facts  excusing  notice,  becomes 
unconditionally  liable.  But  notwithstanding  the  identity  of 
results,  there  is  an  essential  diiierence  between  what  is  de- 
scribed in  the  books  as  a  waiver,  and  what  is  held  to  excuse 
the  notice  by  which  the  obligation  implied  by  the  act  of  draw- 
ing a  bill  or  indorsing  a  note,  loses  its  conditional  character 
and  becomes  a  fixed  liability.  The  waiving  of  this  right  is 
either  expressly  or  by  implication  the  voluntary  act  of  the 
party,  for  whose  benefit  the  law  requires  the  notice  to  be 
given.  While  matters  in  justification  or  excuse  of  the  omis- 
sion of  duty  on  the  part  of  the  holder  may  arise  without  any 
act  of  volition  on  the  part  of  the  antecedent  "party  whose  liabil- 
ity depends  upon  notice.^ 

§931.  Division  of  Subject. —  In  treating  this  branch  of  our 
subject  the  voluntary  act  of  the  party  by  which  the  necessit}' 
for  notice  is  dispensed  with,  will  be  considered  first  in  order; 
and  secondly,  such  matters  as  are  held  to  excuse  the  giving  of 

'  Story  on  Prom.  Notes,  g  358. 


WAIVER    AND    EXCUSE.  413 

due  notice,  without  regard  to  the  intentions  of  the  party  to  be 
notilied. 

§932.  Waiver  may  be  Antecedent  or  Subsequent. — Judge  Story 
lays  down  tlie  doctrine  that  in  cases  of  waiver,  strictly  so-called, 
the  indorser  is  discharged  from  all  liabilit}'-  by  the  antecedent 
laches  of  the  holder,  or  other  party;  and  he  incurs  a  new  lia- 
bility by  his  subsequent  assent  and  waiver  of  his  rights,  after 
the  laches  is  incurred,  and  has  been  fully  made  known  to  him.^ 
But  if  we  are  to  follow  this  learned  author  in  what  he  says  in 
the  same  connection  respecting  an  excuse  for  the  omission  or 
neglect  of  due  notice,  and  hold  with  him  that  it  is  "  in  its 
nature  a  justification  for  such  omission  or  neglect,  without 
any  consent,  express  or  implied,  on  the  part  of  the  indorser,  to 
be  bound  by  it,"  we  shall  find  many  instances  where  notice  is 
voluntarily  dispensed  with  by  the  indorser  or  drawer,  long 
prior  to  the  maturity  of  tlie  instrument,  and  consequently  be- 
fore the  holder  could  have  been  guilty  of  laches,  and  will  feel 
justified  in  classing  these  as  instances  of  vMiver.  This  classi- 
fication not  only  seems  logical  and  consistent,  as  there  can  be 
no  good  reason  why  a  right  may  not  be  waived  in  advance, 
but  it  has  the  additional  advantage  of  meeting  the  general 
understanding  of  a  proper  application  of  the  term. 

§933.  Antecedent  Waiver  in  Writing. — A  common  example 
of  express  waiver  before  matuiity,  is  when  by  apt  words  the 
intention  to  dispense  with  this  formality  is  expressed  upon 
some  portion  of  the  instrument,  or  there  is  an  express  waiver 
of  demand,  as  "  I  hereby  waive  protest  on  the  within  note,  and 
hold  myself  bound  for  the  payment  of  the  same,  as  if  legally 
protested;"^  or  "I  hereby  waive  notice,  demand,  protest  and 
due  diligence  ;"^  and  even  where  it  was  written  in  the  note, 
''  Protest,  and  notice  of  protest  waived,"  this  was  held  sufii- 
cient  to  waive  not  only  notice,  but  demand.* 


'  Story  on  Prom.  Notes,  §  858. 
2  Ball  «.  Greaiid,  14  La.  An.,  805. 
*  Neal  V.  Wood,  28  Ind.,  528. 
^Gordon  v.  Montgomery,  19  Ind.,  110. 


414  NOTICE    OF    DISHONOR    OF    COMMEKCIAL    PAPER. 

§934,  Eflfect  of  "Protest  Waived." — So,  where  the  words 
"  i)rotest  waived  "  were  used  with  reference  to  a  promissory 
note,  it  was  held  to  amount  to  a  w^aiver  of  both  demand  and 
notice,  notwithstanding  the  fact  that  the  meaning  which 
attaches  to  the  word  "  protest "  is  entirely  different  from  that 
of  the  word  "notice."  The  former  is  only  applicable  in  strict- 
ness to  foreign  bills  of  exchange,  while  the  latter  applies  to 
bills  both  foreign  and  inland,  and  negotiable  promissory  notes, 
indiscriminately.  But  when  applied  to  promissory  notes,  the 
word  "  protest,"  by  general  usage  and  understanding,  means 
the  taking  of  such  steps  as  are  necessary  to  charge  anindorser, 
which  include  both  demand  and  notice.^ 

§  935.  "  I  Waive  Demand  of  Protest."  —  So,  also,  where  the 
indorsers,  on  the  transfer  of  a  note  to  plaintiff,  agreed  to  indorse 
it  and  waive  demand  and  notice,  and  accordingly  made  the  fol- 
lowing indorsement  thereon,  signed  by  them  in  their  firm 
name  :  "  I  waive  demand  of  protest,"  it  was  held  that  the  lan- 
guage of  the  indorsement,  altliougli  clumsily  worded,  might 
be  construed  as  implying  an  intention  to  waive  both  demand 
and  notice,  and  that,  if  the  language  were  too  indefinite  or 
ambiguous,  the  meaning  might  be  made  out  by  parol.^ 

§  936.  Waiver  of  Notice  does  not  Include  Presentment.  —  The 
waiver  may  be  embodied  in  the  instrument  over  the  signature 
of  the  drawer  or  maker,  and  thereby  become  binding  upon  all 
those  who  subsequently  become  parties  thereto,"  or  it  may  be 
incor])orated  with  the  contract  of  indorsement  of  one  of  the 
parties,  so  as  to  be  binding  upon  himself,  without  affecting 
subsequent  or  prior  parties  to  the  bill  or  note.  In  general,  a 
waiver  of  notice  does  not  include  presentment  or  demand, 
nor  does  it,  by  implication,  excuse  a  failure  in  either  of  these 
respects  ;  *  l)ut  this  rule  is  modified  somewhat  to  meet  the 

'  Carpenter  v.  Keynolds,  43  Miss.,  807;  Jaccard  v.  Auderson,  37  Mo.,  91. 

-  Porter  v.  Kemball,  53  Barl).,  467 ;  Union  Banli  v.  Hyde,  6  Wheat.,  572. 
Contra,  Bird  v.  Lc  Blanc,  0  La.  Au.,  470;  Wall  v.  Bry,  1  Id.,  312. 

'Bryant  c.  Merchants'  Bank  of  Ky.,  8  Bush.,  43;  Smith  v.  Loclcriduje,  Id., 
423;  Lowry  v.  Steele,  27  Ind.,  168;  Woodman  v.  Tliurston,  8  Cash.,  157. 

^  Voorliies  v.  Atlee,  29  la.,  49;  Buchanan  v.  Blarsliall,  22  VL,  561 ;  Drink- 


WAIVEK    AND    EXCUSE.  415 

peculiar  circumstances  of  particular  cases.  It  depends,  to 
some  extent,  upon  the  time  when  the  waiver  is  made.  xVccord- 
ingly,  where  such  waiver  was  indorsed  on  the  note  on  the  day 
of  maturity — after  the  holder  had  informed  the  prior  party 
that  he  had  been  to  the  place  of  payment,  and  there  were  no 
funds  there,  the  written  waiver  of  notice  of  protest  was  held 
to  waive  any  irregularity  of  demand  as  well  as  notice.* 

§  937.  No  Special  Form  Required.  —  No  particular  form  of 
words  is  necessary  to  waive  notice.  Whatever  language  is 
employed,  it  will  be  sufficient  if  it  conveys  the  information 
that  the  indorser  or  drawer  intends  to  absolve  the  holder  from 
the  exercise  of  that  diligence  in  making  demand  and  giving 
notice  of  dishonor  which  the  law  imposes.  So,  where  there 
was  added  to  the  blank  indorsement  the  word,  ''  accountable," 
this  was  held  to  be  a  waiver  of  demand  and  notice;^  and  the 
same  construction  was,  in  another  case,  given  to  the  words, 
"eventually  accountable,"  when  added  to  his  indorsement  by 
the  party  transferring  the  note.^  The  following  waiver, 
indoi'sed  upon  a  note,  was  held  sufficient  to  dispense  with 
demand  and  notice  :  "  I  assign  the  within  note  to  J.  T.,  and 
hold  myself  responsible  for  the  ])ayment  of  the  same;  the  said 
P.  [the  maker]  to  have  two  years  to  pay  the  same,  unless  he 
prefer  to  ])ay  sooner,  interest  on  the  same  to  be  paid  annu- 
ally."" 

§  93S.  Waiver  by  Letter.  —  But  instances  of  waiver  jjrior  to 
maturity  are  by  no  means  confined  to  cases  where  the  w^ritten 
waiver  is  made  part  of  the  instrument,  or  indorsed  thereon 
when  the  note  is  transferred.  Where  the  indorser,  a  few  days 
previous  to  the  maturity  of  the  note  upon  which  he  was  lia- 
ble, wrote  to  the  holder,  informing  him  that  the  maker  had 

Avater  «.  Tebbetts,  17  Me.,  IG;  Berkshire  Bank  v.  Jones,  6  Mass.,  524;  Backua 
«.  Shipherd,  11  Wend.,  020;  Burnliani  v.  Webster,  17  Me.,  50. 

'  Scull «.  Mason,  43  Penu.  St.,  99;  Mills  v.  Beard,  19  Cal.,  158;  Fisher  v. 
Price,  37  Ala.,  407. 

5  Furber  «.  Cuverly,  42  N.  H.,  74. 

••'McDonald  v.  Bailey,  14  Me.,  101. 

*  Airey  v.  Pearson,  '61  Mo.  424. 


416  NOTICE    OF    DISHONOR    OF    C0MMEKCIAL     PAPER. 

failed,  acknowledged  his  own  liability,  and  asked  indulgence 
nntil  fnnds  conld  be  realized  from  securities  held  by  him  from 
tlie  maker,  this  acknowledgment  was  held  sufficient  to  dis- 
pense with  both  demand  and  notice.^ 

§939.  Jfay  be  Verbal.  —  Nor  is  it  even  necessary,  to  render 
the  waiver  of  notice  effectual  to  bind  the  drawer  or  indorser, 
that  it  should  be  reduced  to  writing.  It  has  been  held,  in  a 
few  isolated  cases,  that  as  the  written  indorsement  is  the  high- 
est and  best  evidence  of  the  indorser's  contract,  it  could  not  be 
varied  or  modified  by  a  parol  promise,  and  consequently,  a 
contemporaneous  verbal  promise  by  the  indorser,  to  pay  the 
note  in  the  event  the  maker  did  not,  would  not  dispense  with 
notice  of  dishonor."'  But  this  view  of  the  question  is  ably 
controverted "  by  Judge  Loweie  in  Barclay  v.  Weaver.^  The 
learned  judge  frankly  says:  "I  decided  this  cause  while  I 
was  judge  of  the  court  below.  *  '"  *  *  But 
on  the  first  point,  I  am  convicted  and  convinced  of  error. 
That  point  presents  the  question,  may  a  party  prove  by  parol 
testimony  that  at  the  time  of  the  indorsement  of  a  promissory 
note,  it  was  agreed  that  the  indorser  should  be  absolutely 
bound  for  the  payment  of  it,  without  the  usual  demand  and 
notice?  This  was  answered  in  the  negative  in  the  court  below, 
on  the  principle  that  oral  testimony  cannot  be  heard  to  vary 
the  terras  of  a  written  contract.  It  is  not  so.  *  *  * 
*  *  The  most,  therefore,  that  can  be  said  of  an  indorse- 
ment of  negotiable  paper  is,  that  from  it  there  is  imjplied  a 
contract  to  pay  on  condition  of  the  usual  demand  and  notice; 
and  that  this  implication  is  liable  to  be  changed  on  the  ajDpear- 
ance  of  circumstances  inconsistent  with  it,  whether  those 
circumstances  be  shown  orally  or  in  writing."  And  in  the 
same  connection — "But  it  may  well  be  questioned  whether 
the  condition  of  demand  and   notice  is  truly  part  of  the  con- 

'  Leffingwell  v.  White,  1  Johns.  Cas.,  99;  Minturn  v.  Fisher,  7  Cal.,  573; 
Yeager  «.  Farwell,  13  Wall.,  6. 

'^  Hightower  n.  Ivey,  2  Port.  (Ala.),  308;  Barry  v.  Morse,  3  N.  H.,  132. 
»19Penn.  St.,  396. 


WAIVER    AND    EXCUSE.  417 

tract,  or  only  a  step  in  the  legal  remedy  upon  it."  Although 
the  reasoning  of  this  opinion  has  not  been  fully  adopted  in 
cases  where  the  same  result  is  reached,  the  decided  weight  of 
authority  is  in  favor  of  the  doctrine  that  the  conditions  of  the 
indorser's  or  drawer's  contract  may  be  waived  by  a  parol  con- 
tract, and  that  parol  testimony  of  circumstances  tending  to 
show  a  waiver  of  such  conditions  will  be  competent  to  establish 
the  fact.^ 

§940.  May  be  Established  by  Circxunstances.  —  As  already  inti- 
mated, the  fact  of  waiver  of  notice  may  be  established  by  the 
proof  of  circumstances,  inconsistent  with  the  right  of  the 
antecedent  party  to  insist  upon  the  observance  of  the  condi- 
tions of  his  contract,  as  well  as  by  the  express  promise  of  such 
party.  Not  the  least  common  of  these  circumstances  is  the 
verbal  declaration  of  the  indorser  or  drawer,  which  implies  a 
waiver  of  the  conditions  upon  which  his  contract  depends. 
As  where  the  maker  and  indorser  of  a  note  resided  in  the 
same  house,  and  the  holder  sending  a  written  notice  to  the 
maker  on  the  day  of  its  nominal  maturity — before  the  expira- 
tion of  the  three  days  of  grace — the  maker  was  absent  from 
home,  and  the  holder's  messenger  exhibited  the  note  to  the 
indorser,  who  read  it  and  informed  the  messenger  that  the 
maker  would  see  the  holder  in  a  short  time,  and  wished  him 
not  to  sue  the  note  until  the  maker  could  see  him,  it  was  held 
that  this  was  a  request  for  further  forbearance  and  was  calcu- 
lated to  induce  the  holder  to  believe  that  measures  were  being 
taken  to  meet  the  note.  It  was  held  to  amount  to  an  implied 
waiver  of  demand  and  notice.^  So  where  the  drawer  requested 
the  holder  not  to  present  the  draft  at  once,  but  to  hold  on  to  it 
for  a  time,  he  was  held  thereby  to  have  waived  demand  and 
notice.^ 

'  Fuller  V.  M'Donakl,  8  Me.,  213;  Lane  v.  Steward,  20  Me..  98;  Farmers' 
Bank  c.  Waples,  4  Ilarr.  (Del.),  429;  Pliipson  v.  Kneller,  1  Stark.,  110; 
Barker  v.  Parker,  6  Pick.,  80. 

"  Gove  V.  Vining,  7  Mete.,  212. 

=  Sheldon  v.  Chapman,  31  N.  Y.,  G44. 

27 


il8  NOTICE    OF    DISrrONOR    OF    COMMERCIAL    PAPKR. 

§  94:1.  Promise  to  Maker.  —  So  also,  in  Marshall  v.  Mitchell/ 
the  language  of  Judge  Wells,  in  rendering  the  opinion  is, 
"that  the  promise  of  defendant  (the  indorser)  several  months 
before  the  note  is  due,  made  to  the  maker,  that  he  would  take 
it  up,  was  a  fact  of  which  the  plaintiff  (the  holder)  had  a  right 
to  avail  himself  -x-  *  *  *  AYhen  the  indorser  says 
to  the  maker,  he  will  pay  the  note,  it  is  a  declaration  that  the 
other  parties  need  not  give  themselves  any  trouble  in  relation  to 
it."  It  is  probable,  however,  that  whether  a  merely  gratuitous 
promise  of  this  kind,  made  by  the  indorser  to  the  maker, 
would  operate  to  absolve  the  holder  from  the  duty  of  giving 
the  promissor  due  notice  of  dishonor,  would  depend  somewhat 
upon  the  holder's  having  notice  of  such  promise.  But  where 
the  indorser  informed  the  holder  of  the  failure  of  the  maker, 
before  the  note  became  due,  and  said  further  that  he  should 
have  no  trouble  about  it,  as  the  note  should  be  paid,  this  was 
properly  held  a  waiver  of  demand  and  notice,  though  neither 
of  these  conditions  were  expressly  mentioned."^  And  upon  the 
same  principle  where  the  indorser,  at  the  time  of  the  transfer 
of  the  note,  informed  the  indorsee  that  he  would  be  at  the 
place  of  payment  when  the  note  fell  due,  and  would  then  take 
it  up  if  it  were  not  paid  by  any  other  party  to  it,  this  was 
held  to  be  an  agreement  to  pay  on  but  one  condition,  and  that 
all  others  implied  in  the  contract  of  indorsement,  including 
that  of  notice,  were  waived.^ 

§  942.  Wheu  Promise  Supported  by  Consideration.  —  It  is  equally 
certain  that  where  the  promise  to  the  maker  is  not  a  mere 
gratuity  on  the  part  of  the  indorser,  but  is  supported  by  a 
valid  consideration,  as  the  return  of  the  original  consideration 
of  the  note,  or  where  other  property  of  the  maker  is  taken 
absolutely  by  the  indorser,  with  the  agreement  to  take  up  the 
note,  whether  this  be  before  or  after  dishonor,  it  will  amount 


'  35  Me.,  321. 

» Whitney  v.  Abbot,  5  N.  H,  378. 

sBoyd  V.  Cleveland,  4  Pick.,  52i;  Laae  v.  Steward,  20  Me.,  98. 


WAIVER    AND    EXCUSE  419 

to  a  waiver  of  all  the  conditions  of  the  contract  of  indorse- 
ment.^ 

§  943.  Iiulemnity  does  not  always  Waive.  —  But  the  principle 
upon  which  notice  is  waived,  or  excused,  by  the  acceptance  of 
indemnity,  on  the  part  of  an  indorser,  and  his  undertaking  to 
become  the  principal  debtor,  has  been  carefully  restricted  in 
its  application,  so  as  not  to  include  all  cases  where  the  party 
conditionally  liable  is  indemnified  against  loss.  Some  of  the 
cases  holding  that  notice  is  waived  or  excused  by  indemnity 
taken,  are  decided  upon  the  ground  that  the  want  of  notice 
can  work  no  injury  to  the  indorser,  provided  he  holds  sufficient 
security  to  save  hiili  harmless ;~  and  others,  where  the  indorser 
has  taken  a  general  assignment  of  all  the  maker's  property 
before  maturity  of  the  note,  upon  the  ground  that  the  indorser 
having  already  acquired  all  that  he  could  obtain  by  pursuing 
his  remedy  against  the  maker,  will  not  desire  to  avail  himself 
of  such  remedy  and  consequently  notice  "svould  be  fruitless.^ 
Most  of  the  cases  cited,  where  these  doctrines  are  broadly 
announced,  seem  to  be  decided  in  accordance  with  sounder 
principles  than  those  loosely  stated  as  the  ground  of  the 
decisions. 

§  944.  Note  for  Real  Estate,  Legal  Title  still  in  Grantor.  —  For 
example,  in  Develing  v.  Ferris,^  the  note  was  given  for  real 
estate  sold  by  the  indorser  to  the  maker,  and  the  legal  title 
was  expressly  reserved  by  the  grantor,  until  the  payment  of 
the  purchase  money.  This  amounted  to  more  than  the  taking 
of  indemnity,  the  sufficiency  of  which  could  only  be  approxi- 

'  Andrews  v.  Boyd,  3  Mete,  434 ;  Taunton  Bank  v.  Richardson,  5  Pick., 
436;  Scott  v.  Greer,  10  Penn.  St.,  103. 

'^  Holman  v.  Whitney,  19  Ala.,  703;  Barrett -y.  Charleston  Bank,  2  McMul- 
len,  191 ;  Stephenson  v.  Primrose,  8  Port.  (Ala.),  155. 

'Mechanics'  Bank  v.  Griswold,  7  Wend.,  1(35;  Bond  v.  Farnham,  5  Mass., 
170;  Commercial  Banlc  v.  Hughes,  17  Wend.,  94;  Perry  v.  Green,  19  N.  J. 
Law,  61;  Barton  v.  Baker,  1  Serg.  &  R.,  334;  Develing  v.  Ferris,  18  Ohio, 
170;  Stephenson  v.  Primrose;  Supra,  Bank  of  South  Carolina  ».  Meyers,  1 
Bailey,  412;  Kyle  «.  Greene,  14  Oliio,  495;  Kramer  d.  Sanford,  4  Watts  & 
S.,  328 ;  Walters  v.  Munroe,  17  Md  ,  154 ;  Prentiss  v.  DanieLou,  5  Conn.,  175. 

*  Svpra. 


420  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

mately  determined,  and  more  tlian  the  acceptance  of  an  assign- 
ment of  the  maker's  entire  estate,  regardless  of  its  sufficiency. 
Kyle  V.  Greene  ^  presents  substantially  the  same  state  of  facts, 
and  the  conclusion  reached  is  the  same. 

§  945.  Where  Waiver  Depends  on  Sufficiency  of  Indemnity. —  The 
reasoning  upon  which  those  cases  depend,  where  the  question 
of  waiver  is  made  to  turn  upon  the  sufficiency  of  the  indem- 
nity, and  that  to  the  extent  of  the  value  of  the  indemnity,  the 
indorser  may  be  held  liable  without  notice,  because  he  sufters 
no  injury  on  account  of  its  omission,  is  calculated  to  open  a 
question  of  fact,  subversive  of  the  doctrine  of  notice  of  dis- 
honor of  negotiable  securities,  in  its  application  to  all  cases. 
If,  where  the  indorser  has  received  collateral  security,  we  are 
to  inquire  into  its  sufficiency  to  determine  whether  he  will  be 
required  by  a  failure  to  give  him  notice  of  the  dishonor  of  the 
instrument  upon  which  he  has  become  conditionally  liable, 
there  seems  no  reason  why  in  every  case  that  may  arise,  the 
conditional  nature  of  his  contract  may  not  be  made  to  depend 
upon  the  question  whether  he  is  reall}^  prejudiced  by  a  failure 
to  give  the  notice,  within  the  time  and  in  the  manner  and 
mode  which  the  courts  have  almost  universally  agreed  upon 
as  reasonable  and  just.  It  is  well  known  that  in  reply  to  the 
defense  of  insufficient  notice,  the  courts  will  not  entertain  the 
excuse  that  the  indorser  suffered  no  injury  by  the  omission,  or 
neglect.  They  will  not  go  into  detailed  examination  of  the 
condition  of  the  parties  and  the  circumstances  of  the  transac- 
tion in  order  to  determine  whether  the  general  rule  will  apply.^ 

§  946.  Indemnity  taken  for  his  own  Security.  — Where  however, 
the  indorser  has  by  his  own  voluntary  act  rendered  it  impossible 
for  the  maker  to  pay  a  note,  or  has  received  into  his  own  hands 
a  fund  sufficient  to  satisf)'  the  same,  under  a  contract,  express 
or  implied,  to  become  the  principal  debtor,  there  is  abundant 
reason  for  holding  that  he  thereby  waives  demand  and  notice, 
and  consents  that  the  obligation  he  has  assumed  shall  become 


'  8vpra. 

«  Hill  V.  Martin,  12  Mart.,  La  ,177 ;  Dennis  v  M*  rice,  3  Esp  ,  15S. 


WAIVEK    AND    EXCUSE.  421 

fixed  and  unconditional.^  But  the  mere  taking  of  security,  to 
indemnity  him  against  possible  loss  does  not  alter  the  character 
of  his  original  undertaking.  The  promise  which  the  law 
implies  from  his  indorsement  is  that,  ■i/*  payment  of  the  note 
or  bill  is  demanded  at  maturity,  ^/' payment  is  refused,  and  if 
he  is  duly  notified  of  the  non-payment,  then  he  will  be  bound 
to  pay  the  same  and  is  entitled  to  look  to  the  party  ultimately 
liable,  for  re-imbursement.  This  is  the  nature  of  the  liability 
against  which  he  seeks  to  be  indemnified,  and  until  all  the 
contingencies  upon  which  that  liabilit}^  depends  have  happened, 
and  all  the  conditions  duly  performed  by  the  obligee,  his  obli- 
gation to  subsequent  parties  retains  its  conditional  character. 
When  the  time  within  which  he  should  be  notified  has  expired, 
he  may  safely  return  his  security  to  the  liands  from  which  it  was 
received.  The  indemnity  was  taken  for  his  own  security,  and 
he  is  under  no  obligation  to  retain  it  for  the  benefit  of  other 
parties  on  the  same  paper.^ 

§  947.  Illustration  of  Foregoing  Doctrine.  —  In  Clegg  v.  Cot- 
ton,^ the  drawer  of  a  bill  of  exchange,  being  the  agent  of  the 
drawee,  had  placed  funds  in  the  hands  of  the  indorser  by  way 
of  indemnity,  which  were  to  be  returned  on  his  release  from 
liabilit}'.  The  court  held  that  he  was  released  by  a  failure  0' 
the  holder  to  notify  him  of  the  dishonor  of  the  bill,  and  could 
consequently  return  the  funds  held  as  security. 

§948.  Indorser  with  Funds  of  Maker  does  not  Become  Principal. 
—  In  Ray  v.  Smith,'*  the  funds  in  the  hands  of  the  indorser 
were  derived  from  the  profits  of  business  carried  on  by  the  in- 
dorser and  maker  as  partners,  and  the  latter  had  merely  author- 

'  Seacord  v.  Miller,  13  N.  Y.,  55;  Denny  v.  Palmer,  5  Ired.,  GIO;  Cornoy 
«.  Da  Costa,  1  Esp.,  303. 

■■'Dtnny  v.  Palmer,  5  Ired.,  GIO;  Seacoid  v.  Miller,  13  N.  Y.,  55;  Taylor 
«.  French,  4  E.  D.  Smith,  458;  Spencer  v.  Harvey,  17  Wend..  489;  Clegg  «. 
Cotton,  3  Bos.  &  Pul.,  239;  Oswego  Bank  1).  Knower,  Hill  &  Den.,  122; 
Ray  u.  Smith,  17  Wall.,  411;  Watkins  «.  Crouch,  5  Leigh.,  522;  Mar.-hall  v. 
Mitchell,  34  Me.,  227;  Hsiskell  v.  Boardman,  8  Allen,  3S;  AVilson  «.  Senier, 
14  Wi.s.,  380;  Moses  ^).  Ela,  43  ^\  II.,  557;  Holland  v.  Turner,  10  Conu.,  308. 

'^  tup  Id. 

*  Supra. 


422  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

ized  the  former  to  apply  them  to  the  payment  of  the  notes  at 
their  maturity,  but  the  court  refused  to  decide  as  a  conclusion 
of  law  that  the  indorser,  as  between  himself  and  the  maker 
liad  assumed  the  obligation  of  a  principal  debtor. 

§  949.  Assignment  to  Trustees  will  not  Excuse. — The  prominent 
circumstances  of  the  case  of  Watkins  v.  Crouch/  were  that 
there  was  an  assignment  to  a  trustee  of  all  the  maker's  prop- 
erty, in  trust  to  pay  off  several  debts,  and  among  them  one- 
fourth  the  principal  and  interest  of  the  note  upon  which  the 
defendant  was  an  indorser.  This  was  held  insufficient  to  dis- 
pense with  notice  of  the  dishonor. 

§  950.  Taking  Mortgage  of  all  Maker's  Property,  held  no  Waiver. 
—  In  Haskell  v.  Boardman,^  the  point  decided  was  that  a 
mortgage  of  all  the  maker's  property  accepted  by  the  indorsers, 
conditioned  that  the  grantor  should  perform  all  contracts 
which  the  grantees  had  theretofore  or  should  thereafter  sign, 
indorse,  etc.,  and  save  the  said  grantees  harmless  from  all  costs 
and  expense,  in  consequence  thereof,  would  not  amount  to  a 
waiver  of  notice  of  dishonor,  of  the  instrument  indorsed. 

§951.  Indemnity  Stronger  Reason  for  Notice.  —  In  rendering 
the  opinion  in  Taylor  v.  French,^  the  learned  judge  declares  that 
instead  of  the  security  for  the  indorsement  affording  a  reason 
for  dispensing  with  notice  to  the  indorser  thus  secured,  it 
furnishes  a  stronger  reason  why  he  should  be  informed  of  the 
non-payment.  Without  notice  thereof  he  might  suppose  it 
to  have  been  paid,  and  in  consequence  of  such  neglect,  have 
parted  with  his  security  Substantially  the  same  reasoning  is 
employed  by  Judge  Bissell  in  rendering  the  opinion  in  the 
case  of  Holland  v.  Turner.* 

§952.  Illustration. — The  possibilities  hinted  at  above  are 
practically  illustrated  by  an  early  English  case.'  There,  cer- 
tain notes  were  indorsed  by  G,  for  D,  who  was  insolvent.     A 

'  Supra. 
^  Supra. 
°  Supra. 
*  Supra. 
« Nicholson  v.  Gouthit,  2  H.  Bl.,  609. 


WAIVER    AND    EXCUSE.  4:33 

few  days  before  maturity  the  iiidorser  informed  the  holder  that 
if  the  note  was  sent  him  he  would  pay  it.  This  was  construed 
to  mean  that  he  would  pay  it  if  it  came  to  him  in  the  regular 
way  after  being  duly  presented.  At  the  time  of  making  the  offer, 
the  indorser  had  in  his  possession  a  fund  belonging  to  D,  from 
which  to  pay  the  note.  Demand  not  being  made  until  three 
days  after  maturity  the  indorser  gave  up  the  funds  and  was 
lield  discharged  for  want  of  due  notice. 

§  953.  Indorsement  of  Renewal  Note.  —  It  has  been  held  that 
the  mere  indorsement  of  a  renewal  note,  in  anticipation  of  the 
non-payment  of  the  original  obligation  at  maturity,  where  the 
bank  holding  the  original  refuses  to  discount  the  renewal,  will 
not  amount  to  waiver  of  notice;  for  notwithstanding  the  fact 
tliat  the  maker  may  fail  to  renew,  this  would  not  be  conclu- 
sive evidence  that  payment  was  impossible.^ 

§  954.  Request  no  Waiver  when  not  Acceded  To.  —  The  very 
limit  of  strictness  in  favor  of  the  indorser's  right  to  notice,  seems 
to  have  been  reached  if  not  overstepped  in  the  case  of  Cayuga 
Bank  v.  Dill.^  There  the  indorser  called  upon  the  holder  on  the 
day  of  the  maturity  of  the  instrument,  and  told  him  that  the 
maker  would  not  pay,  as  he  was  absent  from  the  country,  and 
to  let  it  lie  over  until  his  return,  when  one  hundred  dollars 
would  be  paid,  and  the  note  renewed  for  the  balance.  The 
holder  failed  to  protest  the  note,  through  a  mistake  of  the  clerk 
of  the  bank,  as  to  the  day  of  its  maturity,  and  not  on  account 
of  this  conversation;  and  for  this  reason  alone  it  was  held  that 
the  express  request  of  the  indorser,  to  let  the  note  lie  over,  did 
not  amount  to  a  waiver,  and  he  was  consequently  discharged 
b}'  the  laches. 

§  955.  Waiver  b}^  Indorser.  —  Although  a  waiver  of  notice  in 
the  body  of  the  instrument  will  be  binding  upon  all  those  who 
become  parties  thereto,  the  same  result  does  not  follow  a  wai- 
ver by  the  first  indorser.  Each  indorsement  is  the  personal 
obligation  of  the  party  who  makes  it,  and   the  subsequent 


'  May  V.  Boisseau,  8  Leigh,  1G4. 
» 5  Hill,  403. 


4:24:  NOTICE    OF   DISHONOR    OF    COMMERCIAL    PAPER. 

indorser  will  be  entitled  to  notice  notwithstanding  a  waiver 
thereof  by  a  prior  party.^ 

§  956.  Conflicting  Views.  —  There  is  a  lack  of  harmony 
between  the  authorities,  respecting  the  consequences  of  a 
promise  by  the  indorser  or  drawer,  to  pay  the  dishonored 
instrument.  This  difference,  however,  is  in  regard  to  the 
technical  operation  of  such  subsequent  promise,  as  well  as  the 
extent  to  which  it  affects  the  liability  of  the  promisor.  The 
cases  of  one  class  are  decided  upon  tlie  hypothesis  that  there 
has  been  a  failure  of  notice;  but  by  the  subsequent  promise 
they  hold  the  neglect  or  omission  is  waived.^  Those  of  another 
class  are  decided  upon  the  theory  that  although  there  is  no  direct 
proof  of  notice,  the  subsequent  promise  raises  a  presumption 
that  such  notice  was  given,  which  can  only  be  overcome  by  proof 
of  the  negative  of  that  proposition.^  There  is  still  a  third 
class  where  there  seems  to  be  an  attempt  to  hold  the  promisor 
upon  both  grounds,  or  upon  either  in  the  alternative.* 

§  957.  Conditions  of  Waiver  by  Subsequent  Promise.  —  Where 
the  effect  given  to  the  subsequent  promise,  is  that  it  shall  be 
regarded  as  a  waiver  of  the  omission,  or  neglect  to  give  notice 
of  dishonor,  it  is  subject  to  certain  conditions  which  cannot  be 
dispensed  with  in  any  instance.  The  promise  must  be  abso- 
lute, unconditional,  and  made  with  a  full  knowledge  of  the 
laches  of  the  holder  or  other  subsequent  party  in  neglecting 


'  Central  Bank  v.  Davis,  19  Pick.,  373. 

'  Hopkins  «.  Liswell,  12  Mass.,  53;  DoualdsoQ  ??.  Means,  4  Dall.,  109; 
Oglesby  v.  Stoajaboat,  10  La.  An.,  117;  Salisbury  v.  Renick,  44  Mo.,  554; 
Cheshire  v.  Taylor,  29  la.,  492 ;  Viele  u.  Germania  lus.  Co.,  26  Id.,  9 ;  Hughes 
V.  Bowen,  15  Id.,  446;  Mathews  v.  Allen,  16  Gray,  594;  Smith  v.  Curlee,  59 
111.,  221 ;  Pate  o.  McClure,  4  Rand.,  164;  Debuys  v.  Mollere,  3  Mart.  N.  S., 
318;  Woodson  v.  Eastman,  10  N.  H.,  359;  Cram  v.  Sherburne,  14  Me.,  48; 
Leonard  v.  Gary,  10  Wend.,  504;  Hazard  v.  White,  26  Ark.,  155;  Thornton 
V.  Wynn,  12  Wheat.,  183;  Stix  v.  Mathews,  63  Mo.,  3  1 ;  Chaffee  v.  M.  C.  & 
N.  W.  R.  R.  Co.,  64  Mo.,  193. 

^Lawrence  v.  Ra'stou,  3  Bibb,  102;  Donnelly  v.  Howie,  Hayes  &  J.,  436; 
Huntington  v.  Harvey,  4  Conn.,  124;  Gibbon  v.  Coggou,  2  Camp.,  188. 

•»  Union  Bank  v.  Giinishaw,  15  La.,  321;  Tebbetts  v.  Dowd,  23  Wend.,  379; 
Breed  v.  Hillhouse,  7  Conn  ,  523. 


WAIVER    AND    EXCUSE.  425 

to  make  demand  or  give  due  notice  of  non-payment,  as  well 
as  a  knowledge  of  an  j  other  circumstances  by  which  the  indors- 
er's  rights  may  be  aflFected.^ 

§  958.  Subsequent  Promise  without  Knowledge.  —  Where  the 
indorser  was  in  possession  of  full  knowledge  of  the  dishonor, 
and  also  was  aware  that  the  time  witliin  which  notice  should 
have  been  given  had  expired,  but  was  ignorant  at  the  time  of 
the  subsequent  promise,  that  a  prior  party  liad  been  permitted 
to  erase  his  indorsement,  the  subsequent  promise  was  held  not 
binding  upon  him."^ 

§  959.  Promise  Express  and  Implied.  —  The  doctrine  as  laid 
down  by  Lord  Mansfield  in  Barradaile  v.  Lowe,^  is  that  an 
indorser,  after  having  been  discharged,  cannot  be  rendered  liable 
on  the  bill  except  by  an  express  promise  witli  knowledge  of 
the  fact.  This  interpretation  of  the  rule  was  applied  to  the 
case  decided,  where  it  was  sought  to  bind  the  indorser,  wiio 
was  incontestably  discharged  by  the  neglect  of  the  holder  to 
give  notice  of  dishonor,  but  who  had,  after  such  neglect  come  to 
his  knowledge,  wrote  to  the  holder  to  send  the  bill  to  a  prior 
indorser.  There  is  perhaps  no  case  where  the  giving  of  such 
gratuitous  advice  has  been  construed  into  a  promise  to  pay ; 
but  there  seems  to  be  no  solid  reason  why  contracts  of  this 
kind  should  be  restricted  to  such  as  are  express  in  their  terms. 
Later  authorities  have,  without  abandoning  in  any  degree  the 
doctrine  that  the  promise  should  be  unconditional,  decided 
that  the  indorser  could  be  held  by  an  implied  as  well  as  an 
express  promise. 

§  960.  Implied  Promise.  —  For  example,  where  subsequent  to 
the  dishonor,  and  in  the  absence  of  notice,  the  indorser,  witli 

'Ford  V.  Dallom,  3  Cold.,  (J7;  Blum  v.  Bidwell,  20  La.  An.,  43;  Van 
Wifkle  V.  Downing,  19  Id,  83;  Baskeville  v.  Harris,  41  Miss.,  535;  Bank  of 
U.  S.  V.  Leathers,  10  B.  Mon.,  04;  Kelley  v.  Brown,  5  Gray,  108;  Gawtry  v. 
Doane,  48  Barb.,  148;  Arnolds.  Dresser,  8  Allen,  435;  Walker  v.  Rogers, 
40  111.,  278;  U.  S.  Bank  v.  Southard,  17  X.  J.  Law,  473;  Hunter  v.  Hook,  G4 
Barb.,  408;  Martin  v.  Wiuslow,  2  Mason,  241;  Spurlock  v.  Union  Bank,  4 
Humph.,  330. 

2  Low  V.  Howard,  10  Cush.,  159. 

^  4  Taunt.,  93. 


426  NOTICE    OF    DISUONOR    OF    COMMERCIAL    PAPER. 

knowledge  of  the  laches  makes  a  payment  on  the  bill  or  note, 
this  has  been  construed  as  an  implied  promise  to  pay  the 
balance.^ 

§  961.  Promise  to  "  See  it  Paid."  —  So  where  the  indorser,  on 
being  informed,  more  than  four  weeks  after  the  note  became 
dne  that  it  had  not  been  paid,  made  no  objection  that  he  had 
not  been  seasonably  notified  of  the  dishonor,  but  said  that  he 
would  see  it  paid;  although  this  could  hardly,  in  strictures,  be 
called  an  express  promise  to  pay,  it  was  regarded  as  sufficient 
to  bind  the  indorser  to  the  fulfillment  of  the  terms  of  his 
indorsement,  as  though  he  had  received  due  notice.^ 

§  962.  Recitals  in  Contract  Acknowledging  Bill.  —  So,  also,  the 
recitals  in  a  contract  between  the  drawer  and  prior  indorser  ot 
a  bill,  to  the  effect  that  the  bill  was  overdue,  and  ought  to 
be  in  the  hands  of  the  prior  indorser,  and  that  the  latter  should 
take  the  money  due  him  on  the  bill  by  installments,  was  ad- 
mitted in  evidence,  in  an  action  by  a  subsequent  indorser 
against  the  drawer,  to  prove  a  waiver  of  notice.^ 

§  9G3.  Subsequent  Waiver  must  be  Unequivocal. — Nevertheless, 
it  is  generally  held  that  to  constitute  an  undertaking  to  pay 
the  bill,  which  is  implied  from  the  conduct  of  the  indorser  or 
drawer  after  dishonor,  there  must  be  a  more  unequivocal  recog- 
nition of  liability  than  would  amount  to  a  waiver  if  made 
prior  to  maturity.  As,  in  cases  where  the  doctrine  is  fully  recog- 
nized that  the  acceptance  of  an  assignment  of  the  maker's 
entire  estate  would  amount  to  a  waiver  if  made  prior  to  the 
maturity  of  the  note,  it  is  held  that  such  an  assignment  would 
not  have  the  same  effect  when  made  subsequent  to  dishonor, 
altliough  aided  by  the  admission  of  the  indorser  that  he  was 
"  fully  indemnified  for  all  his  liabilities  "  for  the  maker.  The 
admission  was  held  to  refer  to  his  legal  liabilities.'' 


'  Knapp  ».  Ruuals,  37  Wis.,  135 ;  Swaa  v.  Hodges,  3  Head,  251 ;  Tebbets  v. 
Dowd,  23  Wend.,  379. 
»  Ladd  B  Kenuey,  2  N.  H.,  340. 
'Gunson  t.  Metz,  1  Baru.  &  Ores.,  193. 
*  Walters  c.  Munroe,  17  Md.,  lo-l;  Prentiss  v.  Danielson,  5  Conn.,  175. 


WAITER    AND    EXCUSE.  427 

§  964.  Admissions  to  Strangers  do  not  Amount  to  Waiver.  —  The 

language  used  by  the  party,  or  his  conduct  with  respect  to  the 
dishonored  bill,  does  not  always  operate  as  an  admission  of 
continued  liability.  Should  there  be  an  express  admission, 
with  knowledge  of  the  failure  to  give  due  notice,  it  would  only 
be  held  binding  by  giving  it  the  construction  of  an  implied 
promise  to  pay.  If  it  were  allowed  to  take  effect  as  a  mei-e 
admission  of  liability,  it  would  be  immaterial  to  whom  the 
admission  was  made  ;  while  it  is  held  that  a  subsequent  state- 
ment by  the  indorser,  to  a  stranger  to  the  bill,  that  the  fact  of 
notice  not  having  been  given  at  a  proper  time  would  make  no 
difference  with  him,  did  not  amount  to  a  waiver  of  notice.^ 
But  where  the  acknowledgment  comes  in  the  form  of  a  prom- 
ise, it  will  be  as  effective  when  made  to  the  agent  of  the  holder 
as  though  it  were  to  the  holder  himself.^ 

§  965.  Anxiety  to  have  the  Bill  Paid,  not  Waiver.  — The  mere 
manifestation  of  anxiety,  by  the  party  discharged  for  want  of 
notice,  to  have  the  note  or  bill  paid  by  the  party  ultimately 
liable,  howsoever  such  anxiety  may  be  manifested,  provided  it 
stops  short  of  an  unconditional  promise,  express  or  implied,  to 
pay  and  discharge  the  indebtedness  himself,  will  not  amount 
to  a  waiver  of  notice.^ 

§  906.  Where  Subsequent  Promise  Evidence  of  Notice.  —  Those 
cases  liolding  strictly  to  the  doctrine  that  the  subsequent  prom- 
ise is  to  be  taken  as  presumptive  evidence  of  due  demand  and 
notice,  are  forced  to  abandon  entirely  the  hypothesis  that  there 
has  been  a  failure  of  either  of  these  requisite  formalities.  It 
would  be  extremely  illogical  to  admit  an  element  to  a  propo- 
sition which  was  in  direct  contradiction  of  the  hypothesis.  If 
there  has  been  a  failure  on  the  part  of  the  holder  to  notify 
prior  parties,  it  would  be  absurd  to  say  that  any  subsequent 
act,  with  knowledge  of  such  failure,  was  prima  facie  evidence 
that  there  was  no  such  failure.     These  authorities  declare  that 


'  Olendorf  v.  Swartz,  5  Cal.,  480. 
''Si{,^erson  v.  Mathews,  20  How.,  496. 
'Hussey  v.  Freeman,  10  Mass.,  84. 


428  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

wliere  the  presumption  of  notice,  arising  from  the  subsequent 
promise,  is  overcome  by  countervailing  evidence,  the  promise 
ceases  to  have  any  binding  efi'ect  upon  the  promisor,  for  the 
reason  that  it  is  witliout  consideration  and  void.^ 

§  967.  Subsequent  Promise  a  Waiver.  —  The  mere  acknowledg- 
ment of  indebtedness  has  also  been  taken  as  evidence  of  due 
notice;  but  it  was  probably  so  held  upon  the  ground  that  such 
acknowledgment  was  equivalent  to  a  promise  to  pay  what  was 
admitted  to  be  due.'  In  Chapman  v.  Annett,^  however,  it  was 
expressly  decided,  where  the  drawer  of  a  bill  defended  against 
a  subsequent  party,  upon  the  ground  that  he  had  not  received 
due  notice  of  the  dishonor  of  the  bill,  that  a  promise  by  such 
drawer,  after  the  dishonor  of  the  bill,  to  pay  the  same,  did  not 
amount  to  an  admission  of  notice,  but  might  waive  it. 

§968.  Even  Written  Admission  not  Conclusive.  —  It  has  also 
been  held  that  even  a  written  admission  by  the  indorser,  of 
due  notice,  or  of  liability  on  his  indorsement,  after  dishonor, 
is  not  conclusive  upon  the  party  making  it.* 

§  969.  Subsequent  Promise  Either  Waiver  or  Admission.  —  In 
Tebbets  v.  Dowd,^  Judge  Cowen,  in  pronouncing  the  opinion 
of  the  court,  lays  down  the  doctrine  that  a  subsequent  prom- 
ise, made  with  knowledge  of  laches  of  the  holder  in  neg- 
lecting to  give  notice,  would  amount  to  a  waiver  of  such  notice. 
In  this  case,  the  judgment  uf  the  court  below  is  also  sustained, 
on  the  ground  that,  no  laches  appearing  in  the  proof,  the  prom- 
ise or  other  equivalent  act  of  the  drawer  or  indorser  should  be 
received  as  prima  facie  evidence  of  due  notice.  In  so  deciding 
this  case,  the  earlier  case  of  Trimble  v.  Thorn,''  where  a  dilier- 
ent  doctrine  was  announced,  was  expressly  overruled. 

§  970.  Onus  Probandi.  —  This  brino;s  us  to  the  consideration 
of  the  question  of  the  onus  jprohandi^  when  the  controversy  is 

'  Lawrence -y.  Ralston,  3  Bibb,  102;  Donelly  o.  Howie,  Hays  &  J.,  436; 
Huntington  «.  Harvey,  4  Conn.,  124. 

-Jones  v.  O'Brien,  26  E.  L.  &  Eq.,  283;  Eogers  ».  Hackett,  21  X.  H.,  100. 

n  Carr.  &Kir.,  552. 

"Commercial  Bank  «.  Clark,  28  Vt.,  325. 

5  23  Wend.,  379.     See,  also.  Breed  v.  Hillliouso,  7  Conn.,  523. 

ne  Johns.,  153. 


WAIVER   AND    EXCUSE.  429 

between  two  parties  to  a  note  or  bill,  the  prior  of  whom  has 
not  been  duly  notified  of  the  dishonor  of  the  instrument,  and 
the  subsequent  party  seeks  to  hold  him  upon  his  promise  made 
after  dishonor.  Primarily,  as  to  the  question  of  notice,  the 
burden  of  proof  rests  upon  the  party  who  seeks  to  charge  the 
other.  But  when  there  has  been  a  promise  to  pay,  or  other 
act  of  the  prior  party  by  which  it  is  claimed  that  notice  is 
waived  after  dishonor,  the  authorities  are  by  no  means  agreed 
as  to  whether  the  subsequent  party  shall  be  required  to  prove 
that  the  promise  was  made  with  knowledge  of  the  laches,  or 
the  burden  shall  rest  npon  the  party  claiming  to  be  discharged 
by  the  failure,  of  proving,  not  only  the  neglect  or  omission, 
but  his  own  ignorance  of  such  fact  at  the  time  of  the  promise. 

§  9Y1.  Subsequent  Promise  Prima  Facie  Evidence  of  Diligence.  — 
In  Tebbets  v.  Dowd,^  the  onus  seems,  by  the  subsequent 
promise,  to  be  shifted  from  the  holder  to  the  indorser.  If  the 
promise  to  pay  is  prima  facie  evidence  of  due  diligence  on 
the  part  of  the  holder,  it  relieves  the  latter  of  proving  in  the 
first  instance  a  fact  upon  which  the  liability  of  the  indorser  is 
clearly  dependent. 

§  972.  Evidence  of  Knowledge  of  Laches.  —  In  Loose  v.  Loose,^ 
it  was  decided  that  a  subsequent  promise  to  pay  wonld  raise  a 
presumption  that  the  drawer  or  indorser  by  whom  the  promise 
was  made  was  cognizant  of  the  laches  of  the  holder,  which  his 
promise  was  alleged  to  have  waived.  The  judge  who  rendered 
the  opinion  of  this  case  cites  with  approval  the  case  of  Tebbets 
V.  Dowd,  where,  as  we  have  already  seen,  the  promise  was  re- 
garded s&  prima  facie  evidence  that  there  had  been  due  notice 
of  the  dishonor.  It  is  difiicult  to  understand  how  the  same 
fact  may  raise  a  presumption  of  two  antecedent  facts  so  utterly 
inconsistent  with  each  other,  as  tliat  notice  was  duly  given  by 
the  holder,  and  that  the  indorser  had  full  knowledge  that  the 
holder  had  failed  to  give  due  notice. 

'  23  Wend.,  .879. 

''SO  Penn.  St.,  538.  See,  also,  Cliitty  on  B.,  500;  3  Kent's  Com.,  113; 
Nash  ■».  Harrington,  1  Aik.,  39;  Dorsey  i;.  Watson,  14  Mo.,  59;  Walker  tj. 
Laverty,  6  Mnnf.,  487. 


4:30  NOTICE    OF    DISHONOR    OF    COMMEKC'IAL    PAPER. 

§  973.  Onus  Cast  upon  the  Holder. —  On  the  other  hand,  it  has 
been  decided  that  in  all  instances  the  holder  assumes  the  bur- 
den of  proving  notice,  or  such  promise  or  other  conduct  of 
the  indorser,  as  would  amount  to  a  waiver  of  notice.^ 

§  974.  Princiijles  Governing  the  Question.  —  There  may  be  cases 
in  which  it  would  be  more  equitable  to  require  the  proof  of 
negligence  to  be  made  by  the  indorser  who  has  promised  to 
pay  the  note  after  its  dishonor.  There  may  be  others  where 
the  promise  fairly  raises  a  presumption  that  there  has  been  no 
negligence  on  the  part  of  the  promisee.  But  when  we  con- 
sider the  importance  of  uniformity  in  the  rules  governing 
transactions  in  commercial  paper,  and  that  the  notice  by  a 
holder  to  an  indorser  has  come  to  be  considered  as  one  of  the 
most  important  steps  in  fixing  the  liability  of  indorsers,  the 
exceptional  character  of  the  rules  as  to  waiver  of  notice,  and 
that  the  waiver  is  only  by  implication,  it  seems  to  be  adding 
unnecessarily  to  the  confusion  by  which  the  cardinal  princi- 
ples of  this  important  branch  of  the  law  have  become  obscured, 
to  introduce  an  exception  to  the  ordinary  rules  of  evidence  by 
which  such  cases  have  been  governed,  in  order  to  give  to  words 
spoken  with  such  a  questionable  intent,  a  scope  so  far  beyond 
their  necessary  meaning.  In  looking  at  the  question  free  from 
the  bias  of  a  particular  case,  it  would  seem  that  the  promise  to 
pay,  subsequent  to  the  dishonor  of  the  note,  would  be  evidence 
of  a  strong  character  that  the  indorser  helleved  that  notice 
had  been  previously  given,  while  the  tendency  of  such  prom- 
ise to  establish  the  correctness  of  that  belief  would  be  in  some 
cases  so  slight  as  to  be  scarcely  appreciable.  The  sufficiency 
of  the  notice  in  point  of  time,  when  governed,  as  we  have  seen 
in  a  former  part  of  this  chapter,^  by  the  date  of  sending,  and 
not  by  the  date  of  its  recei])t,  is  a  matter  the  knowledge  of 
which  is  peculiarly  with  the  holder,  and  not  with  the  indorser. 
To  consider  the  promise  as  evidence  of  a  belief  in  the  diligence 


1  Walker  v.  Rogers,  40  111.,  278;  United  States  Bank  v.  Southard,  17  N.  J. 
Law,  473. 
2^n«e§793,  821. 


WAIVER    AND    EXCUSE.  431 

of  the  subsequent  party  in  giving  notice,  and  to  deny  to  it  the 
effect  of  raising  a  presumption,  that  the  holder  had  in  fact 
given  due  notice,  is  to  regard  such  promise  as  but  a  link  in  the 
chain  of  evidence  by  which  the  waiver  is  to  be  established,  and 
not  as  a  fact  of  such  importance  as  to  shift  the  onus  ])Tohandi 
with  respect  to  the  question  of  notice,  from  the  shoulders 
of  tlie  holder  to  those  of  the  antecedent  party.  If  the  holder 
fails  to  jjrove  due  notice  of  dishonor,  and  merely  proves  a  sub- 
sequent promise,  without  other  evidence  of  knowledge,  than 
could  be  inferred  from  the  indorser's  manifest  belief  that  no- 
tice was  given,  it  would  seem  that  instead  of  having  the  effect 
of  charging  the  indorser,  it  points  to  his  discharge  for  want 
of  notice,  and  would  sliow  that  the  subsequent  promise  was 
made  in  ignorance  of  that  fact. 

§9Y5.  Knowledge  of  Facts  and  not  their  Legal  Eifect. — The 
knowledge  of  dishonor  and  of  the  failure  by  the  subsequent 
party  to  give  the  requisite  notice,  which  when  brought  home 
to  the  antecedent  party  who  has  promised  to  pay  the  dishon- 
ored paper,  is  only  required  to  be  of  the  facts  involved  in  the 
matter,  and  not  of  their  legal  effect.^ 

§  976.  Excuses  of  a  General  Nature  Enumerated.  —  And  next, 
as  to  what  will  constitute  a  sufficient  excuse  for  the  omission 
of  due  notice  of  dishonor.  Judge  Story  enumerates  the  excuses 
of  a  general  nature  for  failure  to  give  notice  of  dishonor  of 
promissory  notes  as  follows:  "1.  The  cases  where  notice  is 
prevented  by  inevitable  accident,  or  overwhelming  calamity. 

2.  The  prevalence  of  a  malignant  disease,  which  interrupts 
and  suspends  the  ordinary  operations  of  trade  and  business. 

3.  Occurrences  of  a  public  and  political  character,  which  inter- 
rupt or  stop  the  course  of  tlie  trade  and  business,  such  as  war, 
blockade  of  the  place,  invasion  or  occupation  by  the  enemy. 

'  Lack!  v.  Kenney,  2  N.  H.,  340;  Duryee  v.  Dennison,  5  Johns.,  248;  Don- 
aldsoa  D.  Means,  4  Dall.,  109;  Miller  ^.  Hackley,  5  Johns.,  375;  Grifhn  i;. 
Goff,  12  Johns.,  433;  Stevens  -y.  Lynch,  12  East,  38;  Porter  «.  Ray  worth , 
13  East,  417;  Lundie  v.  Robertson,  7  East,  231;  Bilbie  «.  Luinley,  2  East, 
469;  Hopley  'o.  Dufresoe,  15  East,  275;  Contra  Warder  u.  Tucker,  7  Mass., 
44.0. 


•i32  XOTICE    OF    DISHONOR    or    COMMERCIAL    PAPER. 

4,  The  public  interdiction  or  prohibition  of  commerce  between 
the  countries  from  which  or  to  which  the  notice  is  to  be  sent. 

5.  The  utter  impracticability  of  giving  notice,  by  reason  of 
the  party  entitled  thereto  having  absconded,  or  having  no  fixed 
place  of  residence,  or  his  place  of  residence  or  business  being 
unknown,  and  incapable  of  being  ascertained  upon  reasonable 
inquiries."' 

§  977.  Excuses  of  a  Special  Character.  —  Excuses  of  a  special 
and  peculiar  nature  are  enumerated  as  follows:  "1.  That  the 
note  was  given  for  the  accommodation  of  the  indorser  only, 
and  that  he  has  the  sole  interest  in  the  payment,,  and  must 
ultimately  pay  the  same.  2.  An  original  agreement  on  the 
part  of  the  indorser  made  with  the  maker  or  other  party,  at 
all  events  to  pay  the  note  at  its  maturity  to  the  holder.  3. 
The  receiving  of  a  security  or  indemnity  from  the  maker,  or 
other  party  for  whose  benefit  the  note  is  made,  by  the  indor- 
ser, to  secure  him  for  his  liability  thereon.  If  the  security  be 
to  the  full  amount  of  the  note,  the  indorser  will  be  held  liable, 
without  notice,  for  the  full  payment  of  the  note.  If  the  secu- 
rity be  partial  he  will  be  hound  j)?'o  tanto.  4.  A  fortiori^  the 
receiving  money  from  the  maker,  or  other  party  for  whose 
benefit  the  note  was  made,  to  take  up  and  pay  the  note.  5. 
Keceiving  the  note  as  collateral  security  for  another  debt  where 
the  debtor  is  no  party  to  the  note,  or,  if  a  party,  has  not 
indorsed  it.  6.  An  original  agreement  by  the  indorser  to  dis- 
pense with  the  necessity  of  notice,  or  to  be  bound  without 
notice.  As  if  the  indorser,  before  the  note  becomes  due,  agrees 
to  pay  it  in  consideration  of  time  being  given  to  him,  such  a 
promise  is  a  dispensation  with  the  necessity  of  presentment 
for  payment  and  of  notice  of  the  dishonor.  7.  An  order  or 
direction  from  the  indorser  to  the  maker  not  to  pay  the  note 
if  it  be  presented  at  its  maturity,  for  this  plainhMvill  dispense 
with  notice  of  the  dishonor,  since  it  is  procured  by  the  iudor- 
ser's  own  act,  although  it  will  not  dispense  with  the  present- 
ment  of   the   note  for    payment."'      Many   of  the   matters 

'  Story  on  Prom.  Notes,  g^  2^8.  2oa,  356;  Story  on  B.,  g^  308,  309. 

« Story  on  Prom.  Notes,  ^g2!J3,  357;  Cliitty  on  Bills,  500  (9tl>  Load  Ed). 


WAIVER    AND    EX€L>E.  •133 

enumerated  above  as  excuses  of  a  special  nature  have  been 
considered  as  amounting  to  waiv^er  of  notice.^ 

§  978.  Inevitable  Accident.  —  Inevitable  accident  will  excuse 
notice  when  the  happening  of  the  event  is  beyond  the  control 
of  the  party  charged  with  the  duty  of  giving  notice,  although 
the  accident  may  have  resulted  from  the  negligence  of  a  stran- 
ger. As  where  through  a  mistake  of  the  postmaster,  the  bill 
failed  to  reach  the  agent  authorized  to  present  it  for  payment, 
until  the  da^^  following  the  date  of  its  maturity,  it  was  held 
that  notice  given  as  soon  as  possible  after  presentment  would 
be  sufficient.- 

§970.  Prevalence  of  3Ialig-nant  Fever. — Tlie  prevalence  ol  a 
malignant  fever  in  JN^ew  York,  that  being  the  place  of  pay- 
ment, by  which  the  transaction  of  business  was  interrupted, 
was  held  to  be  sufficient  to  excuse  delay  in  giving  notice, 
which  was  due  in  September,  until  the  following  November.^ 

§  980.  Existence  of  War.  —  The  existence  of  war  is  accepted 
as  an  excuse  for  failure  to  present  for  acceptance  or  demand 
payment  and  give  notice  of  dishonor,  where  war  has  been  for- 
mally declared  between  the  belligerent  nations,  before  the 
inception  of  the  bill  or  note,  for  the  reason  that  all  contracts 
between  the  subjects  of  nations  at  war  with  each  other  are 
void.* 

§  981.  Interdiction  of  Commerce.  —  So,  when  the  instrument 
matures  after  the  commencement  of  hostilities  and  the  inter- 
diction of  commerce  between  the  two  countries,  though  it  may 
have  been  made  or  drawn  prior  to  the  commencement  of  the 
war,  the  want  of  demand  and  notice  would  be  excused.' 

§082.  Actual  Hostilities.  —  The  prevalence  of  actual  hostili- 
ties, however,  not  only  has  the  effect  to  excuse  the  giving  of 

'  Supra. 

'■'  Windham  Bank  v.  Norton,  23  Conn.,  213. 

'Tunno  v.  Lague,  2  Johns.  Cas.,  1, 

♦United  States?).  Grossmayer,  9  Wall.,  72;  Harden  v.  Boyco,  oO  Barb., 
425;  Willison  v.  Pattison,  7  Taunt.,  489;  Potts  v.  Bell,  8  T.  R.,  548. 

'  Leathers  v.  Commercial  Ins.  Co.,  2  Bush.,  296 ;  Hopkirk  v.  Page,  2  Brock, 
20;  Griswold  «.  Waddington,  15  .John.,  57;  Scofield  v.  Eicheihcrger,  7  Pet., 
58G;  Stoiy  on  Prom.  Notes,  §262. 
28 


431  NOTICE    OK    DISHONOR    OF    COMMERCIAL    PAP  ER. 

notice,  because  of  the  illegality  of  sueli  business  intercourse 
between  the  subjects  of  the  belligerents,  but  because  of  the 
obstruction  to  the  means  of  communication,  which  renders 
either  the  j)resentment  or  the  giving  of  notice  practically 
impossible,  dangerous,  or  extremely  inconvenient.^ 

§  983.  Late  War.  —  This  doctrine  has  been  frequently  a])plied 
to  cases  arising  during  the  late  civil  war  in  this  country,  and 
it  was  decided,  in  several  instances,  that  during  the  con- 
tinuance of  such  war,  and  especially  after  the  issuance  of  the 
President's  interdict,  all  commercial  intercourse  between  the 
people  of  the  states  remaining  loyal  to  the  national  govern- 
ment and  those  in  insurrection  was  suspended,  and  omissions 
to  give  due  and  regular  notice  of  the  dishonor  of  commercial 
paper  between  them  was  held  excused,  either  on  account  of 
the  difficulties  of  intercommunication  or  the  prohibitoiy  order 
of  the  President,  or  by  reason  of  both  such  facts.^ 

§  984.  Interruption  of  Postal  Communication.  —  When  notice 
is  given  by  sending  a  written  communication  through  the  post- 
office,  addressed  to  the  party  to  be  notified,  at  his  residence, 
within  the  other  belligerent's  territory,  or  at  a  point  between 
which  and  the  place  of  dishonor  there  is  no  postal  communi- 
cation, which  has  been  susj^ended  by  reason  of  the  disturbed 
condition  of  the  country,  such  notice  will  not  operate  to  charge 
the  party  so  notified,  by  converting  his  conditional  liability 
into  an  absolute  one.^ 

§985.  War  where  Note  Payable.  —  The  existence  of  war  in 
the  country  where  the  bill  or  note  is  to  be  presented  for  pay- 
ment or  acceptance,  although  all  the  parties  i)e  residents  of 
such  country,  will  excuse  the  failure  to  give  notice,  when,  by 


'Apperson  v.  Bynum,  5  Cold.,  341;  Patience  i\  Townley,  2  J.  P.  Smith, 
Eng.,  223 ;  Story  on  Prom.  Notes,  g  201. 

'House  V.Adams,  48  Penn.  St,  261;  AVoods  r.  Wilder,  43  N.  Y.,  164; 
Berry  T?.  Southern  Bank  of  Ky.,  2  Duv.,  379;  Bell  v.  Hall,  Id.,  288;  Bell- 
gerry  D.  Branch,  19  Gratt.,  393;  Hayden  v.  Boyce.  59  Barb.,  425;  Polk  v. 
Spinks,  SColdw.,  431. 

"  James  «.  Wade,  21  La.  An.,  548;  Durden  ;;.  Smith!  44  ]SIiss.,  518;  Shaw 
r.  Neal,  19  La.,  156. 


WAIV'ER    AND    EXCUSE.  435 

reason  of  the  existence  of  snch  war,  there  is  a  military  occu- 
pation of  the  conntrj',  wliich  obstructs  intercourse  between  the 
parties  to  the  note  or  bill.^ 

§  986.  Not  Excused  if  Intercourse  Legal.  —  It  has  been  held 
that  unless  it  was  apparent  that,  at  the  time  of  the  protest, 
there  was  such  obstruction  to  communication  that  the  notice 
could  not  have  been  sent,  if  prior  to  the  President's  interdict, 
the  intercourse  was  not  illegal,  and  notice  was  not  excused.^ 

§  987.  Loss  of  Note  by  War  no  Excuse.  —  Nor  will  the  mere 
fact  that,  as  one  of  the  casualties  of  war,  the  note  has  been 
lost  or  removed  bej'ond  the  reach  of  the  legal  holder,  be  suffi- 
cient to  excuse  notice.  The  loss  or  absence  of  the  note,  when 
occasioned  bj  war,  will  furnish  no  better  excuse  for  a  failure  to 
present  and  give  notice  of  dishonor,  than  any  similar  casualty, 
which  is  the  effect  of  any  other  cause.  So,  where  the  notes, 
being  held  by  a  bank  in  Memphis,  were,  by  the  order  of  the 
commander  of  the  Confederate  forces,  removed  South,  about 
the  20thday  of  May,  1862,  and  remained  South  until  the  close 
of  the  war,  in  1865,  it  was  held  that  the  protest  which  took 
place  July  IT,  1865,  and  notice  thereof  given  to  an  indorser, 
who,  together  with  the  officers  of  the  bank,  had  resided  in  the 
city  of  Memphis  throughout  the  war,  would  not  be  effectual 
to  fix  the  liability  of  such  indorser,  who  was  discharged  by  the 
laches  of  the  bank  officers.^ 

§  988.  Entitled  to  Notice  when  Obstruction  Removed.  —  Where 
notice,  which  otherwise  should  be  sent  by  mail,  is  interrupted 
by  a  state  of  war  between  the  countries  in  which  the  prior 
and  subsequent  parties  are  respectively  resident,  or  in  either  ot 
such  countries,  it  is  not  to  be  understood  that  notice  is  thereby 
finally  dispensed  witli.  Upon  a  cessation  of  the  war,  or  the 
removal  of  other  similar  obstacles  to  the  regular  communica- 
tion by  mail,  the  prior  party  becomes  entitled  to  notice,  and  it 
should  be  sent  as  soon  as  practicable.^ 

'  Peters  v.  Ilobbs,  25  Ark.,  07 ;  Dunbar  v.  Tyler,  44  Miss.,  1 ;  Farmers'  Bank 
of  Va.,  V.  Gunnel,  20  Gratt.,  131 ;  Tardy  v.  Boyd,  Id.,  631. 
'  National   Bank  v.  Marr,  0  Bush.  (Ky.),  614. 
^  Apperson  v.  Union  Bank,  4  Coldw.,  445. 
'Morgan  «,  Bank  of  Louisville,  4  Bush.,  82. 


430  NOTICE    OF    DISHOMOK    OF    COM^IKRCFAL    I'APKB. 

§  980.  Party  not  Re<iuireil  to  Violate  Law  of  his  Domicile.  —  Ex- 
cuse founded  upon  the  public  interdiction  and  prohibition  of 
commercial  intercourse  has  been  sufficiently  illustrated  by 
examples  from  the  authorities  cited  with  respect  to  war  be- 
tween the  countries  in  which  the  different  parties  reside.  War 
furnishes  the  most  familiar,  if  not  the  only  instance  where 
commerce  between  different  countries  is  interdicted.  But 
one  of  the  reasons  for  the  excuse  would  be  the  same  where 
intercourse  was  prohibited  in  time  of  peace,  as  no  subject  or 
resident  of  any  country  can  be  compellable  to  do  an  act  which 
violates  the  law  of  his  domicile,  in  order  to  protect  rights 
M^hich  he  is  not  otherwise  at  liberty  to  enforce.^ 

§  990.  Due  Diligence.  —  All  that  is  required  of  the  holder  in 
giving  notice  to  prior  parties  of  the  dishonor  of  a  bill  or  note, 
is  the  exercise  of  diligence  in  making  inquiry  for  the  residence 
or  place  of  business  of  the  party  to  be  notified,  and  if  after 
proper  inquiries  such  place  cannot  be  ascertained,  or  if  the 
indorser  has  absconded,  or  concealed  himself,  or  lias  no  regular 
place  of  residence  or  business,  notice  will  not  be  required,  at 
least  not  within  the  usual  time.^ 

§  991.  Notice  of  Facts  Excnsing  Deniaml. — But  the  absconding, 
absence  or  insolvency  of  the  maker  of  a  note,  or  the  acceptor 
or  drawer  of  a  bill,  even  when  they  excuse  presentment  or 
demand,  will  not  excuse  notice,  notwithstanding  such  circum- 
stance is  known  to  the  indorser  or  other  prior  party  to  be 
affected  by  the  notice.^     The  indorser  or  drawer  is  as  clearly 


'  Stoiy  ou  Prom.  ISJ^otes,  §  2G3. 

'  Brighton  Market  Bank  v.  Philbrick,  40  N.  11.,  506 ;  Browminor  v.  Kin- 
near,  Gow,  81;  Baldwin  v.  Eichardson,  1  Barn.  &  Ores.,  245;  Firth  v. 
Thrush,  8  Id.,  .387;  Peet.  v.  Zanders,  6  La.  An.,  364;  Bateman  v.  Joseph,  2 
Camp.,  461 ;  Garver  v.  Downies,  33  Gal.,  17() ;  Lambert  r.  Ghiselin,  9  How., 
552 ;  Chapman  v.  Lipscombe,  1  .Johns.,  294 ;  Hunt  v.  ilaybeo,  7  X.  Y.,  266. 

•^Farnum  v.  Towle,  12  Mass.,  92;  Denny  v.  Pahuer,  5  Iredell,  610;  :May  v. 
Coflan,  4  Mass.,  341  ;  Nash  v.  Harrington,  2  Aikens,  9 ;  Russell  v.  Langstafte, 
Dougl.,  495;  Smith  v.  Beckett,  13  East,  187;  Esdaile®.  Sowerby,  11  Id.,  114; 
Pons  V.  Kelley,  2  Hayw.,  45;  Warrington  v.  Furbor,  8  East,  242;  Nichol- 
son V.  Gouthit.  2  H.  Bl.,  609;  Rhode  v.  Proctor,  4  B.  &  C,  517;  Tliackery 
V.  Blackelt,  3  Camp.,  164;  Lafitte  v.  Slatter,  6  Bing.,  623. 


WAIVER    AND    EXCUSE.  437 

entitled  to  notice  of  facts  which  excuse  presentment  for 
acceptance  or  demand  of  payment,  as  he  is  to  notice  of  dis- 
honor.^ 

§  992.  Obstructions  Removed — Demand  and  Notice. —  Neverthe- 
less where  the  facts  are  sufficient  to  excuse  delay  in  presentin<j; 
the  bill,  the  notice  may  in  some  instances  at  least,  he  effectually 
given  after  the  obstruction  is  removed  and  the  presentment  or 
demand  is  made;  as  where  the  sickness  or  death  of  the  holder 
intervenes  to  prevent  the  demand  being  nuide  at  maturity.  It 
was  accordingly  held  that  the  sickness  of  the  liolder  of  a  bill 
payable  three  days  after  sight,  would  excuse  his  failing  to 
present  the  bill  within  such  time  as  would  otherwise  be  deemed 
reasonable.^ 

§  993.  Death  of  Holder.  —  Where  the  holder  died  before  the 
maturity  of  the  note,  and  his  executor  proved  the  will  within 
a  month  after  the  maturity  of  the  note,  but  immediately  there- 
after relinquished  his  trust  as  executor  without  liaving  qualified 
as  such,  and  his  successor  in  the  administration,  found  the 
note  among  the  papers  of  deceased,  a  week  after  he  received 
them,  presented  it  next  day,  and  notified  the  indorser  Hie  day 
after,  ol  the  dishonor,  it  was  held  that  the  notice  of  dif.honor 
was  given  within  a  reasonable  time.'^ 

§994.  Sndden  Sickness  and  Death  of  As:ent.  —  The  sudden 
sickness  and  death  of  an  agent  of  the  holder,  who  had  the  note 
in  his  possession,  has  also  been  accepted  as  an  excuse  for 
delay.*  In  this  case  the  holder  M^as  not  aware  of  the  note 
being  in  the  possession  of  his  agent  at  the  time  of  his  decease, 
and  as  soon  as  it  was  discovered,  demand  was  made  and  notice 
of  dishonor  given.  Under  these  circumstances,  a  notice  which 
otherwise  should  have  been  given  on  the  fifteenth  day  of  May, 
was  held  to  be  in  due  time  when  given  on  the  eighth  of  the 
following  June. 

'  Price  V.  Young,  1.  M'f.'onl.,  :':>!);  Taylor  v.  Suyder,  3  Dcu.,  145. 
"  Aymar  r.  Beers,  7  C!ow.,  70."). 
8  White  V.  Suddard.  11  Gray.  258. 
*Duggan  V.  King,  1  Kicc;,  12:!!). 


438  NOTICK    OK    DISHONOR   OF   COMMEKCIAL    PAPER. 

§  995.  Sickness  must  be  Siulden  and  Severe.  —  Sickness,  how- 
ever, will  only  be  a  sufficient  excuse  for  negligence  in  making 
demand  and  giving  notice  of  non-payment,  when  it  appears  to 
have  been  so  sudden  and  severe,  as  to  prevent  the  holder,  or 
agent  who  has  possession  of  the  instrument,  from  presenting 
the  same,  or  employing  another  to  do  so  in  his  stead.  ^ 

§  996.  Special  Excuses  Treated  as  Waiver.  —  The  classification 
and  enumeration  of  excuses  of  a  special  nature  as  laid  down 
by  Judge  Story^  cannot  be  followed  here  without  a  great  deal 
of  useless  repetition,  for  the  reason  that  most  of  the  matters 
there  given  by  the  learned  author  as  excusing  notice,  we  have 
already  presented  as  matters  of  toaiver.^ 

§  997.  Bill  Drawn  for  Benefit  of  Drawer,  —  Xotice  may  be 
excused  by  the  ilict  that  the  bill  or  note  was  drawn  or  made 
for  the  benefit  of  the  drawer,  maker,  or  indorser,  who  would 
otherwise  be  entitled  to  notice.  It  was  accordingly  held  that 
where  the  bill  was  drawn  and  accepted  for  the  benefit  of  the 
drawer,  there  was  no  necessity  of  giving  him  notice  of  its 
dishonor,  as  the  duty  was  incumbent  upon  him  to  take  care  of 
the  bill." 

§  998.  Note  for  Accommodation  of  Payee  —  Even  where  the 
maker  of  the  note  was  really  indebted  to  the  payee,  but  the 
note  was  made  for  the  accommodation  of  the  payee,  who 
indorsed  it,  and  promised  the  indorsee  that  he  would  take  care 
of  it,  he  was  not  entitled  to  notice  of  dishonor.^ 

§  999.  For  Accommodation  of  Drawee  or  Acceptor.  —  But  where 
the  bill  is  drawn  for  the  accommodation  of  the  drawee  or 
acceptor,  the  rule  is  quite  different.  Being  drawn,  for  the 
benefit  of  the  party  to  whom  the  holder  is  directed  for  pa}-- 
ment  in  the  first  instance,    in  case  of  failure  on  liis  part  to 

'  Wilson  V.  Senier,  14  Wis.,  380. 

M/iee§977. 

Mn<ei;§93'3,9:M«Ue9. 

*N.  O.  Sav.  Bunk  y.  ILupcr,  12  Rob.  (La.),  231;  Ross  c.  Bedell,  5  Duer, 
462;  Barbaroux  v.  Waters,  3  Mete.  (Ky),  304;  Sliaip  i\  Bailey,  9  Barn.  & 
Crcs.,  44;  Ex  parte  Heath,  2  Ves.  &  B.,  240. 

*  Torrey  t.  Foss,  40  Me.,  74. 


WAIVER    AND    EXCDSE.  439 

meet  the  obligation  when  presented,  for  whatever  reason  that 
does  not  involve  the  interference  of  the  prior  party,  such  prior 
party  is  entitled  to  notice.^ 

§  1000.  Not  Excused  by  Promise  of  Drawer  to  Provide  for  Bill. 
—  The  English  courts  seem  very  jealous  of  encroachments 
upon  the  general  rule  requiring  notice  to  prior  parties,  of  the 
dishonor  of  commercial  paper.  Lord  Kenyon  in  Staples  v. 
Okines,'^  where  the  drawee  was  in  debt  to  the  drawer  above 
the  amount  of  the  bill,  but  had  informed  the  drawer  that  he 
could  not  meet  the  bill,  and  it  was  understood  between  them 
that  the  drawer  should  provide  for  it  in  case  it  was  not  paid, 
it  was  held  that  the  drawer  was  nevertheless  entitled  to  notice.^ 

§  1001.  No  Funds  iu  tlie  Hands  of  Drawee.  —  It  is  frequently 
urged  as  an  excuse  for  the  want  of  notice  of  dishonor  of  bills 
of  exchange,  that  when  the  draft  is  drawn  the  drawee  has  no 
funds  in  his  hands  wliicli  belong  to  the  drawer,  and  as  a  con- 
sequence the  drawer  cannot  be  injured  by  the  omission.  The 
earliest  reported  case  in  which  this  rule  is  laid  down,  and 
which  seems  to  be  followed  as  an  authority,  is  thatof  Bickerdike 
V.  Bollman.'  In  rendering  the  opinion  Judge  Bdller  says: — 
"  The  law  requires  notice  to  be  given  for  this  reason,  because 
it  is  presumed  that  the  bill  is  drawn  on  account  of  the  drawee's 
having  eifects  of  the  drawer  in  his  hands;  and  if  the  latter  has 
notice  that  the  bill  is  not  accepted,  or  not  paid,  he  may  with- 
draw them  immediately.  But  if  he  has  no  effects  in  the 
other's  hands,  then  he  cannot  be  injured  for  the  want  ot 
notice."^ 

§  1002.  Application  of  the  Rule  Confined.  —  The  above  decis- 
ion may  be  regarded  as  the  foundation  of  a  rule,  which,  with 

'  Ex  pa/rte  Heath,  3  Vch.  &  B.,  240;  Bauk  of  Seaford  v.  Counoway,  4 
Houst.,  206. 

•'  1  Esp.,  333. 

^ Tills,  however,  lias  been  held  differently  in  a  recent  American  case, 
which  seems  to  be  siijiported  by  the  better  reason.  Harrison  v.  Trader,  29 
Ark.,  85. 

*  1  T.  R.,  405,  40!). 

»  See,  also.  Ro^'ors  c.  Stepliens,  2  T.  r..,7i:};  (Jalc*.  Walsh,  5  7rf.,  23S);  Wai- 
wyn  V.  St.  Quintin,  1  Bf>s.  &  Pul.,  65-1 ;    Dickens  o.  Bcal,  10  Pet.,  5^2 


440  NOTICE    OF    DISiroNOK    OF    COMMERCIA.L    I'APER. 

the  modifications  found  necessary  in  its  application  to  casea 
where  the  facts  were  different,  has  been  accepted  bj  the  courts, 
both  American  and  English,  as  based  upon  a  salutary  princi- 
ple. Though  there  has  never  been  a  doubt  expressed  of  the 
soundness  of  the  decision  in  the  case  where  this  doctrine  is  first 
distinctly  and  authoritativeh^  announced,  some  of  the  English 
judges  in  giving  in  their  adhesion  to  the  precedent,  apprehend- 
ino;  a  disturbance  of  the  established  rules  of  the  law  merchant 
upon  the  subject  of  notice,  have  expressed  their  regret  at  what 
they  regarded  as  a  dangerous  departure.^  Viewing  this  as  an 
exceptional  case,  when  cited  as  a  precedent,  the  tendency  has 
been  to  confine  its  application  to  cases  clearly  in  point,  and  not 
to  extend  it  to  cases  possessing  the  single  characteristic  in 
common  witli  Bickerdike  v.  Bollman,  that  the  drawee  held  no 
funds  of  the  drawer.  In  modifying  the  rule  the  courts  have 
also  found  it  necessar}^  to  place  it  upon  a  foundation  less  broad 
than  the  mere  fact  that  the  drawer  would  not  be  injured  by  the 
neglect  or  omission  of  the  holder  to  give  notice  of  the  dishonor; 
as  it  would  open  an  almost  endless  field  of  inquiry,  if  in  every 
case  the  holder  might  go  into  an  elaborate  and  nice  investiga- 
tion of  the  question  whether  the  failure  to  give  notice  had  been 
productive  of  actual  damage  to  the  party  entitled  thereto 
under  the  established  rule. 

§  1003.  American  Cases  Decided  on  InsnfRcient  Reason.  —  In 
some  of  the  American  authorities,  however,  the  absence  of 
injury  to  the  drawer  is  given  as  the  only  reason  of  the  excep- 
tion to  the  general  rule,  and  it  is  announced  that  a  failure  to 
give  notice  will  not  discharge  the  drawer  without  funds,  even 
where  the  bill  has  been  duly  accepted,  and  only  dishonored 
when  presented  for  payment.^  The  reasoning  of  most  of  these 
cases  is  hardly  satisfactory,  in  view  ol'  the  necessity  for  fixed 
rules,  to  be  applied  to  particular  cases,  without  enlarging  the 
scope  of  in(piiry  into  facts. 


'  See  cases  cited  Infra. 

'Hoflman  v.  Smith,  1  Cai.,  1(>0;  Commercial  Bank  w.  Hughes,  17  Wead., 
94;  Foard  v.  Womack,  2  Ahi.,  81)8;  Shirk'y  «.  Fellows,  i»  Port.  (Ala.),  300. 


WArVE[{    AND    EXOUSK.  441 

§1004.  No  Right  to  Expect  Payment.  — ^Tlie  preponderance  of 
authorities,  both  British  and  American,  are  in  favor  of  treat- 
ing the  absence  of  funds  not  as  sufficient  in  itself  to  excuse 
notice  to  the  drawer,  upon  the  broad  ground  that  he  is  not 
injured  by  the  omission,  but  as  evidence  of  the  fact  upon 
which  the  true  reason  of  the  exceptional  doctrine  is  based — 
that  the  drawer  had  no  right  to  expect  that  the  l)ill  would  be 
accepted  and  paid,  and  hence  its  circulation  by  the  drawer 
would  be  either  a  fraud  upon  subsequent  parties,  or  an  indi- 
rect means  of  evidencing  his  own  indebtedness.^ 

§1005.  Drawer  against  Goods  in  Transit. — So,  where  the 
drawer  has  made  or  is  niakino-  a  consifj^nment  of  ffoods  to  the 
drawee,  and  draws  before  the  consignment  comes  to  handf  if 
the  goods  are  in  transitu^  but  there  is  a  failure  to  send  a  bill 
of  lading,  or  the  goods  are  lost ;  if  the  drawer  has  any  prop- 
erty for  sale  in  the  hands  of  the  drawee  ;  if  there  be  a  fluctu- 
ating balance  between  the  di-awer  and  the  drawee,  in  the  course 
of  their  transactions ;  if  the  drawee  has  been  in  the  habit  of 
accepting  the  bills  of  the  drawer,  without  regard  to  the  state 
of  their  accounts,  or  the  drawer  has  a  reasonable  expectation 
that  the  bill  will  be  accepted  or  paid,  the  transaction  cannot 
be  denominated  a  fraud,  and  tlie  drawer  is  entitled  to  notice.' 

§  1006.  Opinion  of  Marshall.  —  In  Ilopkirk  v.  Page,"  there 
was  a  balance  in  the  drawee's  hands,  amounting  to   lOs.  lid., 


JRucker  v.  Hiller,  16  East,  43;  Norton  v.  Pickering,  8  B.  &  C,  (510; 
Cory  V.  Scott,  3  Barn.  &  Aid.,  619;  Walwyn  v.  St.  Qnintin,  1  Bos.  &  Pul., 
654;  Blackhan  «.  Doreii, '2  Camp.,  503;  Lord  Ellenborough  in  Brown  «. 
Maffey,  15  East,  216;  Loggc  v.  Tliorpe,  13  Id.,  171;  Lafitte  v.  Shitter,  4 
Moore  k  P.,  457;  Dickon-s  v.  Boal,  10  Pet,  572;  French©.  Bank  of  Cohim- 
bia,  4  Cranch,  141 ;  Louisiana  State  Banlc  v.  Buhler,  22  La.  An.,  83;  Oliver 
».  Bank  of  Tennessee,  11  Ilunipii.,  74;  Kinsley  v.  iiol)inson,  21  Pick.,  327; 
Campbell  v.  Pettengill,  7  :Me.,  126;  Ilopkirk  v.  Page,  2  Brock.,  20;  Miser  v. 
Trovinger,  7  Ohio  St.,  281;  McKae  «.  Rliodes,  22  Ark,  315;  Schuchardt  u. 
Hall,  36  Md.,  5!)0;   Farmers'  Bank  v.  Vannieter,  4  Rand.,  .~)53. 

'Olivers.  Bank  ofTennessee,  11  Humph., 74;  Robins  «.(Jibson,  3  Camp., 
334. 

*  Dickens  v.  Bcal,  and  other  cases  cited  in  note  1,  Svpra. 

*2  Brock.,  20.    See,  also,  Blankenship  v.  Rogers,  10  Ind.,  333. 


442  NOTICE    OF    DTSIIONGR    OF    COMMERCIAL    I'AI'Kli. 

and  the  draft  was  tbi*  £246  3s.  7d.,  with  no  expectation,  which 
seemed  to  have  any  reasonable  ^rounds,  that  the  bill  would  be 
paid,  it  was  held,  bj  Chief  Justice  Marshall,  that  notice  was 
unnecessary.  "  The  sound  sense  and  justice  of  the  exception,'' 
said  the  learned  judge,  "  is  that  where  a  d)'awer  knows  that  he 
has  no  right  to  draw,  and  has  the  strongest  reason  to  lielieve 
his  bill  will  not  be  paid,  the  motives  for  requiring  notice  do. 
not  exist,  and  his  case  comes  within  the  reason  of  the  excep- 
tion. AVhere  all  transactions  between  parties  have  ceased,  and 
there  is  nothing  to  justify  a  draft  but  a  balance  of  one  penny, 
it  would  be  sporting  with  our  understanding  to  tell  us  tliat  a 
creditor  for  this  balance,  who  should  draw  for  a  thousand 
pounds,  would  be  in  a  situation  substantially  different  from 
what  he  would  be  in  were  he  the  debtor  in  the  same  sum." 

§1007.  Illustration. — An  example  of  a  draft  without  rea- 
sonable expectation  of  payment,  is  where  the  drawer  was 
engaged  in  executing  a  contract,  through  an  agent  in  a  distant 
city,  and  tlie  drawee  acted  as  his  trustee  to  receive  the  money 
to  be  paid  on  the  contract,  and  pay  it  out  on  tlie  drawer's 
order.  The  drawee  had  written  the  other  party,  urging  the 
completion  of  the  work,  and  advising  him  that  no  further 
money  would  be  paid  until  the  work  was  all  finished.  The 
draft  was  drawn  subsequent  to  this  advice,  and  it  was  licld  that 
notice  was  unnecessary.* 

§  1008.  Mere  Existence  of  Credit.  —  So  the  mere  fact  of  the 
existence  of  a  credit  in  the  drawer's  favor  will  not  always  fur- 
nish reasonable  grounds  for  expecting  that  the  bill  will  be 
paid.  As  where  the  drawer  had  supplied  the  drawee  with 
goods  on  a  credit,  which  did  not  expire  until  long  after  the 
maturity  of  the  bill,  and  had  no  funds  in  the  hands  of  the 
drawee,  and  no  further  reason  to  anticipate  the  payment  of  the 
bill,  it  was  held  that  he  was  not  entitled  to  notice  of  protest.- 

§  1009.  Expectation  of  Payment  3In.st  Continue  to  Maturity.  —  It 
is  not  sufficient  to  discliarge  a  di-awer  who   has  not  received 

'  Wollenweber  c.  Ketterliiius,  17  Penn.  St.,  'SbQ. 
"  Claiidgc  c.  Dalton,  4  Maul,  i^  Sel..  226. 


WAIVER    AND    EXCUSE.  443 

notice  of  dishonor,  that  at  the  time  the  bill  was  drawn,  he  had 
sufficient  funds  to  meet  it  in  the  hands  of  the  drawee,  or  had 
good  reason  to  anticipate  its  payment.  The  reasonable  expecta- 
tion of  payment  must  continue  down  to  the  maturity  of  the 
bill.  So,  wliere  the  drawer  of  a  draft  or  check  withdraws  his 
balance  from  the  bauds  of  the  drawee  before  the  bill  matures, 
or  the  check  is  presented,  he  is  not  entitled  to  notice  of  non- 
payment, as  a  condition  precedent  to  his  liability.^  But  if,  at 
the  maturity  of  the  bill,  the  holder  iiave  a  reasonable  expecta- 
tion that  it  will  be  paid,  notice  to  him  cannot  be  dispensed 
with,'' although  the  funds  in  the  hands  of  the  drawee  may  not 
be  sufficient  in  amount  to  pay  the  draft.^ 

§  1010.  Need  not  be  Anticipated  from  Drawee.  —  The  I'easona- 
bleness  of  the  expectation  will  not  depend  upon  the  fact  that 
payment  is  anticipated  as  coming  directly  from  the  drawee. 
If  he  has  reason  to  believe  that  some  one  else  will  have  sup- 
plied the  drawee  with  funds  at  the  maturity  of  the  bill,  and 
for  a  failure  to  make  such  provision  the  drawer  would  have  a 
right  of  action  against  the  one  so  failing,  notice  to  the  drawer 
would  be  necessary.'^ 

§  1011.  Promise  from  Drawee.  — Where  the  drawer  had  received 
from  the  drawee  a  promise  to  meet  the  draft,  if  he  did  noth- 
ing thereafter  to  prevent  tlie  funds  coming  to  the  hands  of  the 
drawee,  he  might  reasonably  rest  in  the  belief  that  the  bill 
would  be  paid  at  maturity,  although  he  knew  that  the  funds  in 
the  hands  of  the  drawee  were  not  sufficient  to  meet  the  draft.^ 

§  1012.  Where  Drawee  has  Already  Honored  Drafts.  —  !So,  where 
an  acceptance  was  given  by  a  drawer  upon  a  drawee,  who  liad 

'  Purchase  v.  Muttison,  0  Duer, 587;  Jacks  y.  Darrin, :}  E.  D.  Smith,  itiil ; 
Sutcliffe  V.  McDowell,  2  Nott  &  McC,  351;  Lilley©.  Miller,  Id.,  357;  Eich- 
elberger  ».  Finley,  7  Harr.  &  J.,  381;  Valk  ?\  Simmons,  4  IMason,  113; 
Moody  1).  Mack,  43  Mo.,  210;  Morrison  ».  McCartney,  30  Mo.,  183;  Adams 
V.  Darby,  28  Mo.,  162;  Linville  v.  Welch,  2!i  Id.,  203. 

2Legj,^e«.  Thorpe,  12  East,  171. 

3  Orr  V.  McGinness,  7  East,  359. 

*  Brown  v.  Matley,  15  East,  21();  Latitte  v.  Slatter,  (J  Bing.,  623. 

"Orear  v.  McDonald,  9  Gill,  350. 


4t4  NOTICE    OF    DISirOXOR    OF    COMMERCIAL    PAPER. 

already  honored  several  drafts  from  the  same  source,  although 
he  held  none  of  the  drawer's  funds,  the  drawer  would  be  enti- 
tled to  notice,  upon  the  ground  of  reasonable  expectation  of 
payment,  provided  the  former  bills  had  been  honored  without 
funds,  and  there  had  been  no  understanding  between  the  par- 
ties limiting  the  transactions  to  the  prior  acceptances.^ 

§1013.  Rnmiing  Account  between  Parties,  —  So  also,  has  it 
been  held  that  where  there  is  a  running  account  between  the 
parties,  any  sum  whatever  standing  to  the  credit  of  the 
drawer  will  justify  the  expectation  of  payment,  so  far  as  to 
entitle  him  to  notice  of  dishonor.""^ 

§  1014.  Suspectini!:  Absence  of  Funds  no  Excuse.  —  Where  the 
holder  made  inquiry  of  the  drawee  on  the  day  preceding  the 
day  of  maturity,  and  ascertained  that  funds  had  not  been 
provided  for  the  payment  of  the  bill,  but  was  informed  by  the 
drawer  that  it  was  probable  that  a  sufficient  amount  would  be 
supplied  in  time,  and  on  the  day  of  maturity  the  drawer  saw 
the  holder  and  told  him  he  would  see  what  could  be  done,  it 
was  held  that  he  was  entitled  to  due  notice,  regardless  of 
Avhether  the  funds  were  in  the  hands  of  the  drawee. or  not. 
And  the  holder,  suspecting  the  continued  absence  of  cash  to 
meet  the  draft,  and  for  that  reason  failing  to  present  the  same 
and  give  notice  of  its  dishonor,  the  drawer  was  discharged  by 
such  omission.^  Had  the  decision  of  this  case  turned  upon 
the  question  whether  the  drawer  was  injured  by  the  neglect  of 
the  holder  to  make  presentment  and  give  notice,  it  would 
doubtless  have  resulted  differently. 

§  1015.  Drawer  being  in  Debt  to  Drawee  no  Excuse.  —  The  cir- 
cumstance that  according  to  the  mutual  accounts  between  the 
drawer  and  the  drawee,  the  former  is  in  debt  to  the  latter,  will 
not  excuse  notice  of  dishonor,  where  the  drawer,  notwithstand- 
ing the  fact  that  the  fluctuating  balance  is  against  him,  has 
cash  in  the  hands  of  the  drawer  to  meet  the  specific  draft.* 

'Spooncr  t.  Gardiner,  Hy.  &  Mood.,  84. 
''  Hill  V.  Norris,  2  Stewart  &  P.,  114. 
^Prideaiix  v.  Collier,  3  Stark.,  57. 
*Blufkhau  v.  Dorcn,  2  Camp.,  503. 


WAIVER    AND    EXCUSE.  445 

§  1016.  No  Expectation  <»f  Fnmls  at  Place,  No  Excuse.  —  It  is  no 
excuse  that  the  funds  are  not  at  the  place  of  payment  desig- 
nated in  the  bill,  and  where  such  fact  was  plead  in  excuse,  and 
that  there  was  no  reasonable  expectation  that  the  funds  would 
be  there,  it  was  held  insufficient,  as  there  should  have  been  an 
averment  of  no  reasonable  expectation  of  funds  in  the  hands 
of  the  acceptor  or  drawee.^ 

§  1017.  No  Excuse  for  Failing  to  Notify  Indorser.  —  The  con- 
si  deraiion  of  want  of  funds,  as  an  excuse  for  failure  to  give 
notice  of  dishonor,  is  necessarily  confined  almost  exclusively 
to  cases  arising  between  subsequent  parties  to  the  bill  and  the 
drawer.  The  mere  fact  that  the  bill  was  drawn  or  a  note 
made  without  funds  to  meet  it,  or  without  even  a  shadow  of 
reason  to  expect  that  it  would  be  paid  at  maturity,  will  not 
excuse  a  failure  to  give  notice  to  an  indorser,  bj'  whom  the 
bill  has  been  transferred  in  good  faith.^ 

§1018.  Accommodation  Indorser. —  And  though  the  payee 
simply  indorses  the  note  to  give  it  currency,  and  with  full 
knowledge  of  the  insolvency  of  the  maker,  he  is  nevertlieless 
entitled  to  notice  of  non-payment  at  maturity,^ 

§  1019.  Indorser  with  Notice  of  Facts  Excusing,  —  But  an 
indorser  of  a  bill  of  exchange,  with  notice  of  such  facts  as 
would  be  sufficient  to  excuse  the  want  of  notice  to  the  drawer, 
whether  it  be  that  the  bill  was  drawn  without  funds,  or  other 
circumstance  from  which  the  drawer  would  have  no  right  to 
anticipate  payment,  would  be  placed  upon  substantially  the 
same  footing  as  the  drawer,  and  whatever  would  suffice  to 
excuse  the  omission  to  notify  the  latter,  would  be  a  valid 
excuse  in  case  of  an  indorser  with  notice  of  the  facts.'' 


'  Harwood  v.  Jarvis,  5  Snecd,  375. 

nVilkes  V.  Jacks,  Pcakf;,  207;  Ilamdulollday  v.  Daricux,  4  Wash.  C.  C, 
61;  Ralston  u  Bull itts,  3  Bibb,  261;  Scarborough  v.  Harris,  1  Bay.,  177; 
Warder  v.  Tucker,  7  Mass.,  44!);  Carter  v.  Flower,  16  M.  &  W.,  743;  Bogy  v. 
Keil,  1  Mo.,  743;  Merchants'  Bank  v.  Easley,  44  Mo.,  286;  Walker  v.  Rog- 
ers, 40111.,  278;  Leach  v.  Hewitt,  4  Taunt.,  781. 

•Groton  v.  Dallheim,  6  Me.,  476. 

«Mobley  v.  Clark,  28  Barb.,  390, 


416  ^'OTlCE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

§  1020.  Former  Paitiiersliip  between  Drawer  aud  Drawee  no 
Excuse.  —  The  indor;;ee  and  holder  of  a  bill  drawn  by  one  upon 
a  former  partner,  where  the  partnership  between  them  had 
been  recently  dissolved,  is  not  excused  from  living  notice  of 
the  dishonor  of  the  bill,  merely  because  he  had  not  been  noti- 
fied of  the  dissolution.  The  notice  of  dissolution  is  onJy 
necessary  when  the  partner  professes  to  act  for  the  partnership. 
In  this  case  he  professed  to  act  for  himself  in  drawing  a  bill 
in  his  own  name,  and  the  erroneous  impressions  of  the  holder, 
as  to  the  relation  subsisting  between  the  drawer  and  the 
drawee,  could  not  be  allowed  to  affect  tlie  rights  of  the  former, 
is  a  party  to  the  bill.' 

§  1021.  Partner  Drawing  upon  liis  Firm,  not  Entitled  to  Notice. 
—  But  though  it  has  been  frequently  decided  that  the  drawer 
or  indorser's  knowledge  of  the  insolvency  of  the  maker  or 
drawee  of  a  note  or  bill,  would  be  no  excuse  for  failure  to  give 
notice  of  its  dishonor,*  the  case  is  quite  different  when  the  bill 
is  drawn  upon  a  co-partnership  by  a  member  of  the  firm. 
There  the  fact  of  insolvency  being  known  by  the  drawer  at 
the  inception  of  the  bill,  has  been  regarded  as  a  virtual  with- 
drawal of  the  funds."  And  aside  from  the  question  of  insol- 
vency, a  partner  drawing  upon  the  firm  of  which  he  is  a 
member  is  not  entitled  to  notice  of  dishonor,  as  he  occupies 
the  position  on  the  bill  of  drawee,  as  well  as  drawer.*  For  the 
same  reason,  where  a  note  is  made  by  a  partnership,  in  favor 
of  another,  and  is  indorsed  by  one  who  is  an  active  member  of 
both  firms,  for  the  payee,  it  has  been  held  that  notice  of  dis- 
honor was  unnecessary  to  bind  the  indorser.^ 

§  1022.  Goods  Purchased  for  use  of  Firm  will  not  Excuse.  —  But 
where  tiie  maker  and  the  indorser  of  a  note  were  partners,  it 

»  Taylor  ■».  Young,  3  Watts,  339. 

-  Sussex  Baak  v.  Baldwin,  17  N.  J.  Law,  487  ;  Miller  «.  Hackley,  5  Johns., 
375;  U.  S.  Bank  v.  Southard,  17  N.  J.  Law,  473. 

^Fuller  V.  Hooper,  3  Gray,  ;^4. 

*  Gowan  v.  Jackson,  20  Johns.,  176. 

"•Dwight^.  Scovill,  2  Conn.,  654;  West  Branch  Bk.  v.  Fulmer,  3  Penn. 
St.,  :jy9. 


WAIVER    AND    EXCUSE.  447 

was  held  that  the  latter  was  entitled  to  notice,  althou^^h  the 
consideration  was  goods  purchased  for  the  use  of  the  firm  in 
the  conduct  of  their  partnership  business.^ 

§  1023.  Fraud  by  Indorser  Excuses  Notice.  —  Whore  the  holder 
of  a  note  made  a  valid  and  binding  contract  of  extension  with 
the  maker,  and  then  transferred  the  note  bj  indorsement  to  a 
purchaser  for  value,  before  maturity,  without  notice  of  such 
contract  of  extension,  he  was  held,  by  the  perpetration  of  this 
fraud  upon  his  indorsee,  to  have  rendered  notice  of  dishonor 
to  himself,  as  indorser,  unnecessar^^^ 

§  1024.  Motives  for  Indorsement  Immaterial.  —  The  motives  by 
which  the  indorser  is  actuated  in  becoming  a  party  to  the 
instrument  cannot  affect  his  right  to  notice,  so  long  as  indorse- 
ment is  not  for  his  own  accommodation,  by  which  he  becomes 
the  substantial  maker.  He  may  be  an  indorser  merely  for  the 
accommodation  of  the  maker,  or  he  nvAj  expect  to  gain  some 
pecuniary  advantage  by  assuming  the  liability;  but  neither  of 
these  circumstances  will  affect  his  status  on  the  instrument, 
nor  deprive  him  of  the  right  to  notice  of  dishonor,^ 

§  1025.  Adding  the  AVord  "  Surety"  no  Excuse.  —  Adding  the 
word  "surety"  to  the  indorsement  does  not  divest  the  party  of 
the  character  of  indorser,  and  hence  does  not  dispense  with  the 
necessity  for  notice,  as  would  be  required  whei'e  the  indorse- 
ment was  made  wnthout  this  addition.  It  merely  gives  him 
the  advantages  of  the  character  of  surety  in  addition  to  those 
of  indorser.'* 

§  1026.  Presence  of  Indorser  when  Payment  Refused  no  Excuse. 
—  The  personal  presence  of  the  indorser  when  demand  of  pay- 
ment was  made  and  the  paj-ment  refused,  has  been  held  in- 
sufficient to  excuse  a  faihire  to  give  notice  of  dishonor.'^ 


'  Foland  v.  Boyd,  23  Fenn.  St.,  476. 

'Williuras    '0.   Brobst,  10    WmUs,  111;   Amoskeag  Bank    v.    Moore,  37 
N.  H.,  5:39. 

^-SL-abury  v.  Hungerford,  2  Hill,  80. 
*  Bradford  v.  Corey,  5  Barb.,  4(il. 
^Grant'o.  Sponcer,  1  Montan.,  i:}(>. 


448  NOTICE    OF    DISHONOR    OF    COMMERCIAL    PAPER. 

§  1027.  AttiuhiiKMit  of  Funds  no  Excuse.  —  Tlie  attachment  of 
the  funds  in  the  hands  of  the  drawee,  at  the  suit  of  a  creditor 
of  the  drawer,  has  been  held  insufficient  to  excuse  a  faiUire  of 
the  holder  to  give  the  drawer  notice  of  the  non-payment  of  a  bill 
of  exchange,  notwithstanding  the  notice  of  attachment,  which 
would  bring  to  his  knowledge  circumstances  calculated  to  ren- 
der it  impossible  for  the  drawee  to  honor  the  draft  at  maturity 
without  incurring  the  risk  of  a  double  liability.^ 

§  1028.  Note  Void  at  Inception,  Notice  Unnecessary.  —  Upon  the 
ground  that  the  indorsement  is,  in  addition  to  the  conditional 
undertaking  to  pay,  an  implied  warranty  of  the  genuineness  of 
tlie  instrument,  it  has  been  held  that  notice  is  not  necessary  to 
bind  the  indorser  of  a  note  which  was  void  at  its  inception.'* 

'  Stanto  «.  Blossom,  14  Mass.,  116. 

» Chandler  v.  Mason,  3  Vt.,  193;  Turnbull  v.  Bowyer,  40  N.  T.,  456. 


ORIGINAL    TROCKSS.  449 


CHAPTER  YIL 

Publication  of  Notices. 


I.  Original  Process. 
II.  Judicial,  Sales. 
III.  Non-judicial  Involuntary    Sales. 
IV.  Miscellaneous  Proceedings. 

T.  Original  Process. 

\  1029.  General  Character  of  Service  by  Publication. 

1030.  Must  Conform  to  Statute. 

1031.  Suits  in  which  Generally  Employed. 

1032.  Aifidavit  or  Declaration. 

1033.  Must  Aver  Jurisdictional  Facts. 

1034.  Should  Allege  Property  within  State. 

1035.  Must  Aver  Cause  of  Action. 

1036.  Ground  of  Attachment. 

1037.  Attachment  of  Property. 

1038.  Requisites  of  Affidavit  in  New  York. 

1039.  Example  of  Sufficient  Affidavit  in  California. 

1040.  Averment  of  "  Due  Diligence  "  Held  Sufficient. 

1041.  Difference  in  Statutes. 

1042.  Conclusions  of  Law  not  to  be  Stated. 

1043.  Expression  of  Opinion  not  Sufficient. 

1044.  Information  and  Belief. 

104.'5.  Sufficient  Statement  of  Absence  from  State. 

1046.  Affidavit  Attached  to  Other  Papers. 

1047.  When  Sufficiency  of  Affidavit  Presumed. 

1048.  Not  Impeachable  in  Collateral  Proceeding. 

1049.  Averments  in  Pleading  Same  as  in  Affidavit. 

1050.  Amendment  not  allowed  after  Publication. 

1051.  Order  of  Puljlication  and  Notice. 

1052.  Who  to  Make  the  Order. 

1053.  Must  be  by  Designated  Officer. 

1054.  Change  of  Order  without  Authority. 

1055.  Contents  of  the  Order. 

29 


450  PUBLICATION    OF    NOTICES. 

1050.  Sufficicut  Recitals  to  Inform  Defendant. 
1057.  Averment  of  Attachment  in  Notice. 
105S.  Nature  and  Amount  of  Plaintifi's  Demand. 
1059.  Foreclosure  and  Partition — Description. 

1000.  Names  of  Defendants. 

1001.  Unnecessary  to  Designate  Statute. 

1002.  Order  Must  be  Properly  Signed. 

1003.  Should  State  Return  Day. 

1004.  Publication. 

1005.  Newspaper. 

1006.  What  is  Newspaper? 

1007.  Published  in  Designated  Paper. 
106S.  Substitute  for  Publication  in  Paper. 
1009.  Full  Time. 

1070.  Computation  of  Time. 

1071.  Three  Calendar  Months. 
1073.  Three  Weeks  Successively. 

1073.  Last  Insertion  Four  Weeks  Prior  to  Term. 

1074.  Six  Weeks'  Publication. 

1075.  When  Time  Cannot  be  Shortened. 

1076.  Days,  Weeks,  or  Months. 

1077.  Certain  Time,  or  Certain  Number  of  Times. 

1078.  Ten  Publications  in  Ten  Weeks. 

1079.  Two  Weeks  in  Daily  Paper. 
1030.  Proof  of  Publication. 

lOSl    To  Satisfaction  of  Court. 

1052.  Affidavit  not  Conclusive. 

1053.  Divorce  and  Alimony. 
1084.  Judgment  Binds  Property. 

10S5.  Judgment  not  Subject  to  Collateral  Attack. 

§  1029.  General  Character  of  Service  by  Publication.  —  Publi- 
cation is  a  means  authorized  by  statute  in  most  if  not  all  the 
states  of  the  Union,  for  obtaining  constructive  service  of 
process,  when  from  the  non-residence,  absence  from  the 
state,  or  absconding  of  the  defendant,  a  more  direct  mode  of 
service  becomes  impracticable.  Service  of  summons  in  this 
manner  is  called  constructive,  not  because  the  publication  in 
the  manner  prescribed  by  statute  raises  any  reasonable  pre- 
sumption that  thereby  the  defendant  is  advised  of  the  pendency 
of  the  suit,  for  its  authorization  is  not  confined  to  cases  where 
there  is  even  a  possibility  of  its  ever  coming  to  the  knowledge 
of  the  party  to  be  afiected.     The  defendant  may  have  removed 


OEIGIXAL    PROCESS.  451 

SO  far  beyond  the  confines  of  civilization  that  it  wonld  be  im- 
possible in  the  nature  of  things  for  the  paper  containing  the 
first  insertion  of  the  notice  to  reach  him  before  the  return  day, 
and  it  will  still  be  as  effective  as  though  the  paper  came  reg- 
ularly to  his  hands. 

S  1030.  Must  Conform  to  Statute.  —  As  this  maianer  of  servino' 
process,  depends  for  its  validity,  more  upon  its  strict  conform- 
ity to  the  statute  by  which  it  is  authorized,  than  upon  any 
inherent  probability  of  its  conveying  intelligence  of  the  im- 
pending suit,  to  the  party  whose  rights  are  to  be  affected,  the 
fact  that  it  has  actually  come  to  the  knowledge  of  defendant, 
cannot  be  shown  to  supply  any  material  deviation  in  the  publi- 
cation, from  what  the  statute  prescribes.  The  statute  being 
in  derogation  of  common  law,  is  always  strictly  construed,  and 
it  must  be  shown  affirmatively  that  its  provisions  have  been 
complied  with.^ 

§  1031.  Suits  in  which  Generally  Employed.  —  Parties  may  be 
eft'ectually  served  by  publication,  in  general,  where  the  suit  is 
brought  by  attachment,  or  to  foreclose  a  mortgage  or  deed  of 
trust,  or  otherwise  to  directly  affect  the  title  to  property 
within  the  jurisdiction  of  the  court.^  This  manner  of  service 
is  also  extensively  used  in  suits  for  divorce.^ 

§  1032.  Affidavit  or  Declaration.  —  The  first  essential  requi- 
site to  a  valid  publication  of  original  process,  is  the  ajjidavit, 
return,  or  declaration  upon  which  the  order  is  based.  The 
allegations  should  be  distinct  and  unequivocal,  and  should  show 
the  existence  of  a  state  of  facts  such  as  would  give  the  court 
or  judge  jurisdiction  to  order  the  publication.'' 

'Scorpion  S.  M.  Co.  c.  Marsano,  10  Xev.,  370;  Likens  v.  McCormick  39 
Wis..  313. 

■2  People  V.  Huber,  20  Cal.,  81 ;  Cook  v.  Farren,  34  Barb.,  95;  Lawrence  v. 
State,  30  Ark.,  719;  Gray  v.  Larrimore,  2  Abb.  U.  S.,  542;  Sexton  ■».  Rhames, 
13  Wis.,  99 ;  Lovejoy  v.  Liiut,  48  3Ie.,  377 ;  Zacharie  v.  Bowers,  3  Sm.  &  M., 
641 ;  Bobb  V.  Woodward,  42  Mo.,  482. 

Marvis  v.  Barrett,  14  Wis.,  591 ;  Pomeroy  v.  Belts,  31  Mo.,  419;  Wilson  v, 
La<ld,  49  Me.,  73. 

Miardsley  ■«.  Hincs,  33  la.,  157;  Merrill  y.  Montgomery,  25  Mich.,  73; 
Schell  V.  Leland,  45  Mo  ,  289. 


452  PUBLICATION    OF    NOTICES. 

§1033.  Must  aver  Jurisdictional  Facts. — It  was  accordingly 
held  in  Eastbrook  v.  Eastbrook,^  that  the  affidavit  should  aver 
diligence  in  endeavoring  to  find  the  party  to  be  served  within 
the  jurisdiction,  and  that  the  court  could  not  be  satisfied  of  the 
existence  of  the  necessary  jurisdictional  facts,  by  the  certificate 
of  the  sheriff  that  he  had  reason  to  believe  that  the  defendant 
was  a  non-resident,  or  was  beyond  the  jurisdiction  of  the 
court. 

§  1034.  Should  Allege  Property  witliin  State.  —  So,  where  the 
affidavit  stated  that  the  defendant  was  a  non-resident  of  the 
state,  but  failed  to  allege  that  he  had  property  within  the  state, 
it  was  held  insufficient  to  authorize  the  order  of  publication.^ 

§  1035.  Must  Aver  Cause  of  Action, —  So,  also,  has  it  been  held 
that  the  affidavit  should  show  by  a  sufficient  statement  of  facts, 
the  existence  of  a  cause  of  action  in  favor  of  plaintifi'  and 
against  defendant,  and  also  the  nature  of  such  cause  of  action.^ 

§1036.  Ground  of  Attachment. — Where  the  suit  was  brought 
by  attachment, the  affidavit  was  required  to  state  in  addition  to 
the  nature  of  the  cause  of  action  between  the  parties,  the  non- 
residence,  departure  from  state,  concealment  to  avoid  sum- 
mons, or  some  one  or  more  of  the  different  grounds  for  attach- 
ment, and  a  failure  in  this  respect,  it  was  held,  would  render 
the  judgment  in  pursuance  of  such  service,  utterly  void.* 

§1037.  Attachment  of  Property.  —  So,  where  the  affidavit 
failed  to  allege  that  the  property  of  the  defendant  had  been 
attached  in  the  suit,  the  defect  was  considered  fatal  to  the 
judgment,  as  this  was  a  fact  necessary  to  the  jurisdiction  of  the 
court.  ^ 

§1038.  Requisites  of  Affidavit  in  New  York.  —  The  essential 
requisites  of  the  affidavit  for  an  order  of  publication  under  the 

'  64  Barb.,  431.     See,  also.  Waffle  v.  Goble,  53  Barb.,  517. 

2  Spiers  v.  Halstead,  71  N.  C,  209. 

'Claypole  v.  Houston,  13  Kans.,  324. 

*  Braley  v.  Seaman,  30  Cal.,  610;  Riley  v.  Nichols,  1  Heisk.  (Tenn.),  16. 

'  Drake  v.  Hale,  38  Mo.,  346 :  Riley  p.  Nichols,  1  Heisk.  (Tenn.),  16.  But, 
see,  Dronillard  v.  Whistler,  29  Ind.,  552;  where  it  is  held  that  the  affidavit 
need  not  mention  the  attachment. 


ORIGINAL    PROCESS.  453 

laws  of  the  State  of  New  York,  as  laid  down  in  Bixby  v. 
Siiiith,^  are:  1.  That  defendant  cannot  after  due  diligence  be 
found  in  the  state.  2.  That  a  cause  of  action  exists  in  favor 
of  plaintiff  and  against  such  defendant,  or  that  defendant  is  a 
proper  party  to  an  action  relating  to  property  within  the  state. 
3.  That  defendant  is  a  non-resident  of  the  state.  And  where 
the  affidavit  upon  which  the  order  was  made  averred  diligence 
on  his  part  and  proper  efforts  to  find  defendant,  but  that  he  could 
not  be  found  in  the  state,  this  was  held  a  sufhcient  statement 
as  to  the  non-residence  of  the  defendant,  to  warrant  the  issuing 
of  the  order  of  publication.^ 

§  1039.  Example  of  Sufficient  Affidavit  in  California.  —  In  a  case 
arising  under  the  California  Statute,  it  was  held  where  the 
affidavit  stated  that  defendant  had  absented  himself  from  his 
place  of  abode  on  the  day  before  the  commencement  of  the 
suit,  informing  his  servant  that  he  would  return  on  the  fol- 
lowing day;  that  he  could  not  be  found  by  the  officer  who  made 
diligent  search  for  him,  and  affiant  believed  that  defendant 
concealed  himself  for  the  purpose  of  avoiding  summons;  and 
that  the  claim  sued  on  was  a  just  debt,  that  this  was  sufficient 
to  justify  the  order. ^ 

§1040.  Averment  of  Due  Diligence  "  Held  Sufficient."— Where 
the  affidavit  stated  that  the  defendant  could  not  "  with  due 
drligence,  be  found  within  the  state,"  it  was  held  not  defect- 
ive for  failing  to  allege  with  particularity,  what  efforts  had 
been  made  to  find  defendant  within  the  state.* 

§1041.  Difference  in  Statutes. — The  statutes  of  the  different 
states  varj'-  materially  with  res})ect  to  the  affidavit.  In  some 
of  them  the  allegation  of  non-residence  is  not  sufficient  without 
the  further  statement  that  the  defendant  could  not  be  found 
within  the  state,^  while  in  others  it  seems  sufticient  to  state 
that  defendant  is  not  a  resident  of  the  state.*' 

'  49  How.  Pr.,  50;  S.  C,  5  Thompson  &  C,  279 

^Simpson  v.  Burch,  6  Tliomp.  &  C.  (N.  Y.),  500;  S.  C,  4  Hun.,  315. 

^Seaver  v.  Fitzgerald,  23  Cal.,  85. 

*  Sueterlee  v.  Sir,  25  Wis.,  357. 

^Mackubin  v.  Smitli,  5  Minn.,  3G7. 

«Byrue  v.  Roberts,  31  la  ,  319;  Dronillard  v.  Whistler,  29  Intl.,  552. 


4:54  PUBLICATION    OF    NOTICES. 

§1042.  Conclusions  of  Law  not  to  be  Stated. — The  decisions 
are  by  no  means  uniform,  upon  the  question  of  what  is  a  suf- 
ficient allegation  of  diligence  in  the  affidavit.  Under  a  statute 
requiring  that  it  should  appear  by  affidavit  to  the  satisfaction 
of  the  court  or  officer  that  personal  service  could  not  be  had 
within  the  state,  it  was  held  that  the  words  "appear  by  affida- 
vit," meant  that  the  affidavit  should  allege  such  matters  as 
would  amount  to  legal  evidence  of  the  fact,  and  would  be 
received  in  the  ordinary  course  of  judicial  proceedings; — "Not 
conclusions,  opinions  or  hearsay'. "  The  averment  that  the 
"defendant  cannot  with  due  diligence  be  found  within  the  state, '' 
was  therefore  treated  as  the  mere  expression  of  an  opinion 
on  the  part  of  the  deponent.  The  affidavit,  it  was  held,  should 
have  detailed  all  that  had  been  done  by  the  deponent  in  endeav- 
oring to  obtain  personal  service  upon  the  defendant,  and  should 
be  sufficiently  strong  to  raise  at  least  a  prima  facie  case  that 
the  defendant  was  out  of  the  state  when  the  suit  was  com- 
menced.^ 

§  1043.  Expression  of  Opinion  not  Sufficient.  —  In  Harrington 
V.  Loomis,^  the  court  following  the  above  construction  of  the 
statute,  applied  it  to  a  case  where  the  affidavit  averred  that  depo- 
nent had  "  seen  and  read  a  letter  received  by  mail,  by  *  '^  * 
deponent's  law  partner,  within  a  few  days  past,  having  the  post- 
mark of  the  postoffice  at  Mount  Hilicon,  Franklin  County, 
Missouri,  and  dated  at  that  place  by  the  defendant;  that  this 
deponent's  law  partner  is  the  agent  of  both  said  defendants, 
and  said  letter,  last  mentioned  as  so  received,  was  directed  to 
him  and  concerned  the  said  Harrington's  business  in  tliis 
county,  and  this  deponent  verily  believes  that  said  defendant 
wrote  the  same,  and  that  he  is  now  at  Mount  Hilicon  afore- 
said." This  affidavit  was  held  insufficient,  as  its  statements 
were  not  inconsistent  with  defendant's  residence  in  the  state, 
though  they  expressed  an  opinion  to  the  contrary. 

§  1044.  Information  and  Belief.  —  Elsewhere,  it  has  been  held 
that  for  the  purpose  of  obtaining  an  order  of  publication,  an 

'  Mackubin  v.  Smith,  5  Minn.,  3G7. 
*  10  Minn.,  366. 


ORIGINAL    PROCESS.  455 

affidavit  founded  on  information  and  belief  will  be  sufficient 
without  stating  in  detail  the  sources  of  such  information  or  the 
grounds  of  such  belief.^ 

§  1045.  Sufficient  Statement  of  Absence  from  State.  —  Where 
the  affidavit  stated  that  the  defendant  was  a  resident  of  the 
Southern  Confederacy^  and  that  it  M'as  consequently  impossi- 
ble to  obtain  personal  service,  this  was  held  sufficient  to 
authorize  an  order  of  publication  of  notice  of  foreclosure  of  a 
mortgage.^  And  the  mere  statement  of  defendant's  residence 
in  the  Southern  Confederacy  was  held  sufficient  to  show  that 
he  could  not  be  found  within  the  State  of  New  York.^ 

§  1046.  Affidavit  Attadied  to  other  Pai)ers.  —  Where  the  affi- 
davit for  an  order  of  publication  is  appended  to  another  paper 
which  is  properly  entitled  in  the  case,  and  the  affidavit  refers 
to  such  paper,  it  will  be  presumed  that  it  has  by  the  reference 
adopted  the  title,  and  the  objection  that  the  affidavit  is  not 
entitled  in  the  cause,  will  not  be  entertained.* 

§  1047.  Wlien  Sufficiency  of  Affidavit  Presumed.  —  Notwith- 
standing the  strictness  with  which  the  statute  has  uniformly 
been  construed,  as  against  those  claiming  under  judgments  or 
decrees  rendered  by  default  after  notice  by  publication,  in  a 
case  where  the  term  of  six  years  had  elapsed  after  the  rendi- 
tion of  the  judgment,  and  it  did  not  appear  affirmativel}'  to 
the  contrary,  it  was  jpre^umed  that  the  order  of  publication 
was  made  on  a  sufficient  affidavit.^ 

§  1048.  Not  Inipeacluible  in  Collateral  Proceeding.  —  Where 
there  is  a  judgment,  by  default,  execution,  and  sale  of  real 
estate,  pursuant  to  a  published  notice,  a  subsequent  grantee  of 
the  debtor  in  the  execution  cannot,  in  a  collateral  proceeding, 
show  the  falsity  of  the  affidavit  upon  which  the  order  of  pub- 
lication was  founded,  in  order  to  impeach  the  validity  of  the 
judgment,  execution,  and  sheriff's  deed.^ 

1  Steinle  n.  Bell,  12  Abb.  Pr.,  N.  S.,  171. 

*  Deitrich  t.  Lang,  11  Kan.,  C36. 

3  Van  Wyck  v.  Hardy,  4  Abb.  App.  Dec,  490. 

*King  ».  Harrington,  14  Micb.,  5o2. 

^  Gemmell  v.  Rice,  13  Minn.,  400. 

«Og(lcn  i\  Walters,  12  Kan.,  252. 


456  PUBLICATION    OF    NOTICES. 

§  1049.  Averments  in  Pleading  same  as  in  Affidavit.  —  When 
by  the  terms  of  the  statute  no  affidavit  is  necessary,  as  where 
the  order  is  based  upon  a  return  of  the  officer  in  whose  hands 
process  has  been  placed  for  personal  service,  or  when  the  peti- 
tion or  complaint  sets  forth  the  facts  which  render  the  publi- 
cation of  notice  necessary,  substantially  the  same  averments, 
and  the  same  mode  of  stating  them,  is  required,  as  when  they 
are  set  forth  in  the  original  affidavit. 

§  1050.  Amendment  not  Allowed  after  Publication.  —  When 
after  service  by  publication  is  made,  the  defendant  does  not 
appear  to  the  action,  the  plaintiff  will  not  be  permitted  to 
amend  his  pleading  and  take  judgment  by  default  upon  the 
cause  of  action  set  out  in  the  amended  pleading.  The  defend- 
ant has  no  notice  of  the  amendments,  and  is  only  called  upon 
to  answer  the  demand  set  up  against  him  by  the  petition  on 
file  when  the  notice  was  published.^ 

§  1051.  Order  of  Publication  and  Notice.  —  In  the  next  place 
the  order  of  lyuhlicatioii  presents  itself  for  consideration.  Bij 
v:)hom  should  it  he  made  f  AXi^  What  should  it  contain?  In 
answering  the  latter  of  these  inquiries,  we  shall  be  compelled 
to  enter  into  a  description  of  the  notice  itself,  as  the  order 
generally  includes  the  notice,  and  both  are  published  together. 
So,  to  avoid  unnecessary  repetition,  they  will  be  treated  of  with- 
out attempting  to  distinguish  between  them  in  detail.  In  order- 
ing the  publication  it  seems  almost  indispensable  to  state  what 
the  notice  shall  contain,  and  the  notice  recites  the  order  for  the 
purpose  of  showing  the  authority  for  the  publication. 

§1052.  Wlio  to  Make  the  Order. —  As  to  who  shall  make  tlie 
order,  this  depends  upon  the  statute  by  which  it  is  author- 
ized, the  nature  of  the  proceeding,  and  other  minor  circum- 
stances too  numerous  and  diverse  to  mention  in  detail,  as  the 
usefulness  of  the  information,  which,  in  view  of  frequent 
changes  in  the  statute  law,  could  only  be  relied  upon  tempo- 
rarily, would  not  counterbalance  the  space  consumed.     In  gen- 

'  Janney  v.  Speddeu,  38  Mo.,  39.5. 


ORIGINAL    PROCESS.  457 

eral,  however,  the  order  is  made  by  the  court  where  the  suit  is 
pending  or  by  the  judge  or  clerk  in  vacation.^ 

§  1053.  Must  be  by  Designated  Officer.  — Where  the  court  or 
officer  by  whom  the  order  shall  be  made  is  designated  by 
statute,  a  valid  judgment  cannot  be  rendered  by  default,  upon 
a  publication  pursuant  to  the  order  of  any  one  else.'^  Thus,  in 
Bardsley  v.  Hines,^  the  record  relied  upon  as  showing  title  in 
defendant  under  a  decree  of  foreclosure,  contained  the  original 
notice  which  was  served  by  publication,  by  which  it  appeared 
that  the  order  was  made  by  the  clerk  of  the  court,  whereas,  the 
statute  required  an  order  of  publication  by  the  court  or  judge, 
of  the  county  or  district  court.  It  was  held  that  the  publica- 
tion under  the  order  of  the  clerk  amounted  to  no  more  than  if 
the  notice  had  been  published  without  any  order  at  all,  and  the 
decree  rendered  by  default  was  utterly  void. 

§  1054.  Change  of  Order  without  Authority.  —  So,  where  under 
the  Probate  Act,  of  California,  it  was  necessary  to  publish  an 
order  of  the  court,  giving  public  notice  to  all  persons  interest- 
ed in  the  estate  of  decedent,  to  appear  and  show  cause,  etc., 
and  the  court  made  the  order,  designating  the  paper,  but 
before  the  expiration  of  the  time  for  which  the  notice  was 
required  to  be  published  by  the  provision  of  the  statute,  and 
the  order  made  in  pursuance  thereof,  the  paper  was  discon- 
tinued, and  the  administrator  selected  another  paper  in  which 
the  order  was  published,  such  publication  was  decided  to  be 
unauthorized,  and  the  proceedings  in  pursuance  thereof  void. "* 

§  1055.  Contents  of  the  Order.  —  As  matter  of  preamble  the 
published  order  usually  contains  a  recital  of  such  jurisdictional 
matters  as  are  averred  in  the  affidavit  or  petition,  as  a  founda- 
tion for  the  order.^  IS'^or  can  this  be  said  to  be  unnecessary, 
as  it  is  essential  that  the  publication  should  set  forth  in  sub- 
stance all  that  is  alleged  against  the   party  to  be  affected; 

'  See  Local  Statutes. 
^Town^end  v.  Tallant,  33  Cal.,  45 
»33  la.,  157. 

*Townsend  v.  Tallant,  33  Cal.,  45.     See,  also,  Adriance  ■);  McCallerly,  3 
Rob.  (N.  Y.),  153;  Pomeroy  v.  Betts,  31  Mo.,  419. 
'Ne'n-man  v.  Cincinnati,  18  O.,  331. 


458  PUBLICATION    OF    NOTICES. 

though  the  form  in  which  such  facts  are  expressed  is  immate- 
riah 

§1056.  Sufficient  Recitals  to  Inform  Defendant. — The  notice 
should  contain  sufficient  recitals  to  inform  defendant  of  the 
nature  of  the  suit  to  which  he  is  required  to  answer.  To  this 
end,  the  order  of  publication  and  notice  should  go  to  the  extent 
of  a  substantial  statement  of  all  the  objects  of  the  suit ;  and 
where  it  was  stated  in  a  published  notice  that  the  object  of  the 
suit  was  to  set  aside  a  deed,  without  any  statement  of  the 
grounds  upon  which  such  a  decree  was  prayed,  the  notice  was 
held  insufficient,  and  a  judgment  rendered  in  pursuance  there- 
of utterly  void.^ 

§  1057.  Averment  of  Attachment  in  Notice.  —  So,  where  the 
suit  is  by  attachment,  it  is  held  in  some  of  the  states  that  the 
notice  as  jjublished  should  state  that  the  defendant's  property 
Juis  heen  attached?  Where  such  is  the  construction  given  to 
tlie  statute  by  the  courts  of  the  state,  it  has  nevertheless  been 
lield  sufficient  to  allege  that  the  property  was  alout  to  le 
attached.)  as  the  object  of  the  notice  was  to  advise  the  defendant 
of  the  pendency  of  the  suit,  and  the  plaintiff  was  entitled  to 
the  order  on  bringing  the  suit,  which  might  be  before  the 
clerk  issuing  the  order  in  vacation  would  be  able  to  certify  to 
the  levy  of  the  attachment.^ 

§  1058.  Nature  and  Amount  of  Plaintiff's  Demand,  —  Under  a 
statute  requiring  the  published  notice  to  state  the  "nature  and 
amount  of  tlie  plaintiff's  demand,"  the  notice  in  a  suit  by 
attachment  alleged  that  the  proceedings  were  "founded  on  two 
promissory  notes  for  the  sum  of  $386.91:."  A  default  was 
taken  for  the  sum  of  five  hundred  and  sixteen  dollars.  In 
deciding  a  motion  to  set  aside  the  judgment  for  irregularity,  this 
was  held  sufficiently  descriptive  of  the  nature  of  the  demand, 
but  as  it  nowliere  appeared    how  much  was   still  due  on  the 

'  Bo])b.  w  Woodward,  42  Mo.,  4S2. 

'' Dnrossptt  ».  Hale,  3S  Mo.,  34G.  See,  however,  Drouillard  «.  Whistler, 
29  Ind.,  5f)2,  where  the  notice  is  not  required  to  show  that  the  proceedings 
arc  hv  attachment. 

^Harris  v.  Grodner,  42  Mo.,  159. 


ORIGINAL    PROCESS.  459 

notes,  the  notice  was  insufficient  for  the  want  of  a  statement 
of  the  amount  claimed,  and  the  judgment  was  set  aside.^ 

§  1059.  Foreclosure  and  Partition — Description.  —  Where  tlie 
object  of  the  suit  is  the  foreclosure  of  a  mortgage,  or  the  par- 
tition of  real  estate,  the  property  to  be  affected  should  be  cor- 
rectly described,  and  with  sufficient  certainty  to  leave  no  room 
for  doubt  as  to  the  particular  parcel  or  parcels  intended.^ 

§  1060.  Names  of  Defendants.  —  The  order,  and  the  notice  in 
pursuance  thereof,  should  be  in  harmony,  and  where  there  are 
several  defendants,  one  or  more  of  whom  are,  from  non-resi- 
dence, or  other  cause,  liable  to  be  summoned  by  publication, 
both  the  order,  and  the  published  notice  should  contain  the 
narajes  of  those  to  be  so  served.  Accordingly,  in  Poraeroy  v. 
Betts^  where  there  were  several  non-resident  defendants,  and 
several  others  as  to  whom  it  appeared  by  the  sheriff's  return 
that  they  could  not  be  found,  etc.,  and  an  order  of  publication 
was  made  as  to  the  non-residents,  and  service  in  the  same  man- 
ner was  ordered  upon  those  not  found,  under  a  separate  pro- 
vision of  the  statute  authorizing  an  order  of  publication 
founded  upon  such  return,  by  the  cou7't  and  not  by  the  clerk, 
it  was  held  that  although  the  names  of  all  the  absentees 
appeared  in  the  notice,  it  being  published  under  the  order 
against  the  non-residents,  could  not  be  regarded  as  directed  to 
those  not  mentioned  in  the  first  order,  which  was  by  the  clerk. 
The  order  founded  upon  the  non  est  return  should  have  been 
published  separately,  or  both  should  have  been  signed  by  the 
court.  As  it  was,  the  judgment  being  against  all,  was  for  the 
irregularity  set  aside,  even  as  to  the  defendant  personally 
served. 

§1061.  Unnecessary  to  Designate  Statute.  —  It  is  not  necessary 
for  either  the  order  or  notice  to  designate  the  statute  by  which 
the  same  is  authorized,  and  when  there  is  an  attempt  to  incor- 
porate this  or  any  other  useless  matter  in  the  notice,  the  valid- 


'TTaywood  v.   Russell,  44  Mo.,  2.j2.     See,  also,  Gary  v.  May,  IG  O.,  C6, 
«  Lawler  v.  WlieUs,  1  Handy,  29. 
=  31  Mo,  41!J. 


460  PUBLICATION    OF    NOTICES. 

ity  of  the  proceeding  will  not  Le  affected  by  errors  in  setting 
tlieni  out  or  designating  them.^ 

§  1062.  Order  Must  be  Proijerly  Signed.  —  Bnt  as  the  making 
of  the  order  is  an  ofHcial  act,  publication  of  the  notice  can  give 
no  validity  to  proceedings  had  in  pursuance  thereof,  unless  the 
order  is  signed  by  the  court,  jndge,  or  clerk  designated  bylaw 
as  the  ])roper  one  to  make  the  same.^ 

§1063.  Should  State  Return  Day. — The  notice  should  also 
name  the  day,  with  reasonable  certainty,  upon  which  the  de- 
fendant so  served  with  process  is  required  to  appear  and 
answer,  and  the  order  should  direct  the  time  for  which  the  pub- 
lication is  to  be  made.  It  M'as  accordingly  held,  where  a 
subpoena  in  chancery,  served  by  publication,  was  dated  "March 
2,  1860,"  requiring  appearance  on  the  second  Monday  of 
"  March  next,"  that  this  would  not  authorize  a,  decree  jpro  con- 
fesso.^ 

§1064.  Publication. — In  the  next  place,  in  pursuing  the 
requirements  of  the  statute  and  following  the  directions  of  the 
order,  the  important  matter  is  the  publication  of  the  notice. 
A  consideration  of  this  necessarily  involves  an  inquiiy  into 
the  proper  mediwrn,  to  be  employed  in  making  public  the  facts 
contained  in  the  notice,  and  the  time  of  publication,  with 
reference  both  to  the  number  of  months,  weeks,  or  days  for 
which  such  publication  shall  continue,  and  the  particular  time 
when  it  shall  cease. 

§1065.  New'Spaper. —  The  medium  of  publication  generally 
designated  by  the  statute  is  a  neivspajyer.  Sometimes  it  is 
required  to  be  2.])iihliG  newspaper;  but  this  adds  nothing  to 
what  would  be  necessarily  implied  in  the  term  "  newspaper"; 
for  any  publication  answering  this  general  description  must  of 
necessity  be  public  in  its  character.  So  that  proof  of  publi- 
cation in  a  neivspajper  would  show  a  sufficient  comjjliance  with 

'  Soule  ®.  Chase,  1  Eob.  (N.  Y.),  222. 
^  Hays  ».  Lewis,  21  Wis.,  663. 
'Elee».  Wait,  28  111.,  70. 


ORIGINAL   PROCESS.  461 

a  statute  or  order  requiring  the  notice  to  be  published  in  a 
puhlic  neiospa/pir} 

§  1066.  What  is  a  Newspaper?  —  In  order  to  fulfill  the  terms  of 
the  law,  the  notice  must  be  directed,  by  the  court  or  officer,  to 
be  inserted,  for  the  statutory  time,  in  some  paper  printed  and 
circulated  for  the  dissemination  of  news  ;  but  it  is  not  essen- 
tial that,  to  answer  the  description,  the  paper  shall  be  devoted 
to  the  dissemination  of  news  of  a  general  character.  It  may, 
with  equal  propriety,  be  published  in  a  paper  devoted  exclu- 
sively to  the  discussion  of  religious,  legal,  commercial,  or  sci- 
entific topics,  and  the  diffusion  of  knowledge  touching  special 
matters  within  its  limited  sphere,  as  in  a  public  journal,  the 
columns  of  which  are  open  to  news  of  a  general  character.  It 
maybe  a  reZt^{6>w5  newspaper,  2^  commercial  newspaper,  a  legal 
newspaper,  a  scientific  newspaper,  or  ^  political  newspaper.^ 

§  1067.  Published  in  Designated  Paper.  —  When  the  newspaper 
has  been  designated  there  must  be  a  strict  compliance  with  the 
order  in  this  respect.  The  publication  being  made  in  any 
other  paper  than  the  one  mentioned  in  the  order,  would  con- 
fer no  jurisdiction  upon  the  court  to  render  judgment,  where 
there  is  no  appearance  by  the  defendant.  But  a  slight  vari- 
ance in  the  title  of  the  paper  in  which  the  notice  is  directed 
to  be  published,  from  that  by  which  it  is  really  known,  will 
not  vitiate  the  process,  where  it  satisfactorily  appears  that  the 
publication  was  in  the  one  intended  by  the  order.  As  where 
the  order  designated  the  "  Evening  Day  Book,"  and  the  notice 
was  published  in  the  "New  York  Day  Book,"  there  being  no 
evidence  offered  that  there  was  any  other  paper  of  the  same  or 


»  Bailey  n.  Myrick,  50  Me.,  171.  In  Mobley  ■».  Leophart  (47  Ala.,  257),  it 
was  held  that,  as  the  Chancellor  and  Register  were  clothed  with  discretion 
as  to  the  place  of  pul)lication,  a  decree  pro  confesso  in  Ahibania,  oa  a  publi- 
cation in  Georgia,  was  good. 

''Kellogg  V.  Corrico,  47  Mo.,  157;  Kerr  v.  Hitt,75  111.,  51.  But  in  the 
absence  of  contrary  provisions  in  the  statute,  it  will  be  understood  to  mean 
a  newspaper  published  in  the  English  language.  Cincinnati  v.  Bickett,  2G 
O.  St.,  49. 


462  PUBLICATION    OF    NOTICES. 

a  similar  name,  to  which  the  order  could  apply,  this  was  held 
sufBcient.^ 

§  1068.  Substitute  for  Publication  in  Paper.  —  Other  means  are 
sometimes  prescribed  by  statute,  either  as  a  substitute  for  pub- 
lication in  a  newspaper,  or  in  conjunction  with  such  publica- 
tion, such  a.s  2yosti?ig  the  notice  in  several  public  places  within 
the  county,  but  this  method  of  publishing  notices  is  so 
rarelj'  employed  for  the  purpose  of  obtaining  service  of  process 
that  it  will  not  receive  further  notice  here. 

§  1069.  Full  Time.  —  It  is  of  the  utmost  importance  that  the 
notice  shall  be  published  for  the  full  time  required  by  the 
statute  and  directed  by  the  order  of  the  court  or  officer  '^  that 
the  last  insertion  shall  be  a  sufficient  length  of  time  before  the 
return  day ;  ^  and  that  such  publication  shall  not  commence 
prior  to  the  date  of  the  order  ;  for  until  the  order  is  made  the 
publication  is  unauthorized. 

§1070.  Computation  of  Time.  —  In  computing  the  time  of« 
publication  and  the  statutory  period  intervening  between  the 
last  publication  and  the  return  day,  the  date  of  the  first  inser- 
tion will  be  included,  for  the  purpose  of  determining  whether 
the  notice  has  been  published  for  the  full  time,  and  the  inter- 
vening period  will  be  understood  to  commence  with  the  day 
following  that  on  which  the  time  of  publication  ceases.* 

§  1071.  Three  Calender  Months.  —  An  example  of  this  is  fur- 
nished by  the  case  of  Savings,  &c..  Society  v.  Thompson.^ 
There  the  first  weekly  insertion  was  made  on  the  tenth  day 
of  Jamtary  and  the  last  on  the  ninth  day  of  April  following. 
This  was  held  to  be  a  publication  for  three  full  calendar 
months;  and  the  first  day  of  the  forty  required^  to  intervene 
between  the  publication  and  the  return  would  be  the  tenth 
day  of  Ajyril. 

§  1072.  Three  Weeks  Successively.  —  "Where  the  statute  re- 
quired publication  for  "  three  weeks  successively,"  before  the 

1  Soule  V.  Chase,  1  Rob.  (X.  Y.),  222. 
^Hill  «.  Faison,  27  Tex.,  428. 
^  Grewell  n.  Henderson,  5  Cal.,  465. 
■»3Iitchell  V.  Woodson,  37  Miss.,  507. 
^32  Cal.,  347. 


OKIGINAL    PROCESS.  463 

hearing,  its  provisions  were  held  sufficiently  complied  with  by 
three  weekly  publications,  although  tlie  last  of  the  three  was 
on  the  day  before  that  appointed  for  the  hearing.^ 

§  1073.  Last  Insertion  Four  Weeks  Prior  to  Term.  —  So,  in  the 
case  of  Haywood  v,  E,ussell,^  under  a  statute  requiring  the 
publication  of  the  notice  for  four  weeks,  and  that  the  last  inser- 
tion sliould  be  "at  least  four  weeks  before  the  commencement  of 
the  term,"  it  was  held  that  this  did  not  necessarily  give  eight 
weeks  from  the  first  insertion  to  the  commencemeet  of  the  term. 
It  was  the  \-3i^t  iiisertion,  wot  the  last  week  of  the  publication 
which  was  required  to  be  four  weeks  prior  to  the  term.  The  no- 
tice being  inserted  at  the  beginning  of  the  last  of  the  four  weeks 
for  wliich  it  was  required  to  be  published,  the  remaining  por- 
tion of  the  week  might  go  to  make  up  a  part  of  the  time 
necessary  to  intervene  between  tlie  publication  and  the  com 
raencement  ot  the  term  at  which  the  process  was  returnable. 

§  1074.  Six  Weeks'  Publication.  —  Where  the  statute  required 
six  weeks'  publication  of  notice  of  an  application  to  sell  lands 
of  a  decedent,  notice  for  any  sliorter  time  was  held  insufficient  to 
warrant  the  sale,  although  tlie  application  was  only  made  after 
the  expiration  of  six  weeks  from  the  date  of  the  first  insertion 
of  the  notice.^ 

§  1075.  When  Time  cannot  be  SJiortened.  —  So  where  the  pub- 
lication by  the  surrogate  of  a  notice  "  to  all  persons  interested," 
etc.,  to  appear  and  show  cause  why  a  sale  of  decedent's  land 
should  not  be  made,  was  required  by  statute,  such  publication 
was  held  necessary  to  confer  jurisdiction  on  the  surrogate  to 
make  the  order  of  sale,  and  if  without  the  statutory  notice,  the 
sale  would  be  void.^  And  the  time  prescribed  by  the  statute 
was  held  mandatory  upon  the  surrogate,  and  could  not  be 
shortened  by  him  without  rendering  the  order  and  sale  utterly 
void.®     ISTor  can  the  time  of  hearing  an  application  for  an  or- 

'  Sweet  V.  Sprague,  55  Me.,  190. 

"44  Mo.,  253.     See,  also,  Bennett  v.  Hetherington,  41  Ta.,  143 

"Gibson  v.  Roll,  30  111.,  173;  Hcrdman  v.  Short,  18  III.,  5!) 

"•Corwin  v.  Merritt,  3  Barb.,  341. 

^  Havens  v.  Sherman,  43  Barb.,  030. 


404:  PUBLICATION    OF   NOTICES. 

der  of  sale,  be  set  for  a  term  of  court  subsequent  to  that  for 
which  notice  was  originally  given,  \V\\\\o\\t  further  notice:'' 
but  where  process  has  been  duly  published  and  made  return- 
able to  the  first  term  of  court,  in  an  action  for  which  publica- 
tion is  authorized,  it  may  be  regularly  continued  and  judgment 
taken  at  a  subsequent  term.^ 

§  1076.  Days,  Weeks,  or  Months.  —The  time  for  which  notice 
shall  be  given  is  expressed  either  in  days,  weeks,  or  months, 
and  in  construing  the  meaning  of  these  terms  with  reference 
to  notices  of  judicial  and  other  involuntary  sales  of  real  estate, 
conclusions  have  been  reached  by  the  courts,  which  will  in 
general  be  equally  applicable  to  notices  by  publication  of  judi- 
cial proceedings.^ 

§  1077.  Certain  Time  or  Certain  Number  of  Times.  —  A  distinc- 
tion, however,  is  made  between  statutes  requiring  publication 
for  a  certain  period  of  time,  in  what  manner  soever  such 
period  is  denominated,  and  those  requiring  the  insertion  of  the 
notice  a  certlan  number  of  times,  in  a  newspaper,  where  the 
continuance  of  the  publication  will  be  determined  by  the 
number  of  regular  issues  within  a  given  tirae.^ 

§  107S.  Ten  Publications,  in  Ten  Weeks.  —  This  distinction  is 
fairly  illustrated  in  Soule  v.  Chase,^  where  the  notice  published 
was  of  an  order  of  the  court,  for  the  creditors  of  an  insolvent 
debtor  to  appear  and  show  cause  why  the  insolvent  should  not 
be  discharged  from  his  debts.  There  the  statute  under  ■which 
the  publication  was  made,  required  the  notice  to  be  by  ten 
fxiblications,  each  of  which  should  he  in  one  of  ten  successive 
weeks,  the  commencement  whereof  was  to  be  determined  by 
the  first  publication.  The  objection  of  insuflicient  time  of 
publication,  was  held  properly  overruled  although  it  appeared 
that  the  proof  was  made  on  the  sixtij -third  day  after  the  first 


1  Morris  v.  Hogle,  37  111.,  150;  Schnell  v.  Chicago,  38  111.,  383. 
s  Crabb  p.  Atwood,  10  lud.,  331. 

2  See  Post  %  1100  et  seq.;  §  1113  et  seq. 

^Sheldon  v.  Wright,  5  N.  Y.,  497;  S.  C,  7  Barb.,  39. 
» 1  Rob.  (N.  Y.),  222. 


ORIGINAL    PROCESS.  465 

publication,  the  notice  having  been  inserted  once  in  each  of 
ten  successive  weeks. 

§  1079.  Two  Weeks  in  Daily  Paper.  —  It  being  questioned 
wliether  the  statutory  requirement  that  notice  should  be  pub- 
lished "  for  two  weeks  successively," '  could  be  satisfied  by  publi- 
cation for  two  weeks  in  a  daily  paper,  without  a  daily  insertion, 
it  was  regarded  as  sufficient  to  insert  the  notice  on  Tuesday 
and  Saturday  of  each  week.^ 

§1080.  Proof  of  Publication.  —  JMext,  &B  to  the  2:)ro of  of  piib- 
lication.  A  compliance  with  the  prerequisites  of  the  statute 
with  respect  to  publication,  is  usually  established  by  the  affidavit 
of  the  printer  or  publisher  of  the  paper  in  which  the  notice  is 
published.  This,  however,  is  a  matter  of  statutoiy  regulation, 
and  in  general  is  not  prescribed  to  the  exclusion  of  all  other 
modes  of  proof.  Where  the  affidavit  was  held  admissible,  it 
was  also  held  that  the  publication  might  be  proved  by  the 
production  of  the  papers  containing  the  notice,  in  court.^  Xor 
is  it  necessary  in  every  instance  where  an  affidavit  is  relied  on 
that  it  should  be  made  by  the  publisher  or  his  foreTnan^ 
although,  in  gene]-al  one  of  these  would  be  the  most  likely  to 
be  cognizant  of  the  facts.^ 

§  1081.  To  Satisfaction  of  Court.  —  In  any  event,  it  is  neces- 
saiy  that  the  publication  must  be  proved,  to  the  satisfaction 
of  the  court,  to  have  been  in  compliance  with  the  provisions 
of  the  statute  authorizing  the  service  of  process  in  that  man- 
ner. Accordingly  where  the  notice  was  not  dated  and  au 
affidavit  was  made  and  filed,  declaring  that  a  notice  whicli  was 
annexed  had  been  published  for  six  successive  weeks  "  preced- 
ing the  said  twenty-third  day  of  September,"  there  being 
nothing  in  the  affidavit  or  papers,  referring  to,  or  identifying 
any  month  of  September,  it  was  held  that  the  proof  was  not 
a  publication  in  conformity  to  the  statute,  as  it  did  not  show 
when  the  notice  was  published. ■* 

'  Brewer  v.  Spriu -field,  Sfl  Mass.,  152. 
'  Claybrook  v.  Wade,  7  Coldw.  (Tenn.),  555. 
'  vSoule  V.  Chase,  1  Rob.  (N.  Y.),  222. 
*  King  ■B.  Harrington,  14  Mich.,  532. 
30 


4iy6  PUBLICATION    OF    NOTICES. 

§  1082.  Affidavit  not  Conclusive.  — Where  the  mode  of^proof 
is  by  afUdavit,  this  will  not  generally  be  regarded  as  conclusive 
upon  the  defendant,  appearing  specially  for  the  purpose  of 
objecting  to  the  proceeding,  on  account  of  an  alleged  irregu- 
larity' in  the  service  of  process.^ 

§1083.  Divorce  and  Alimony.  —  One  of  the  class  of  actions, 
wherein  the  process  may  be  effectually  served  by  publication, 
which  concerns  other  than  mere  proprietory  rights,  is  a  suit 
for  divorce  and  alimony.  In  order  to  render  this  method  of 
service  effectual,  however,  for  the  purpose  of  binding  specitic 
property  it  should  include  a  general  description  of  the  property 
sought  to  be  affected.  And  where  there  is  a  prayer  for  alimony 
in  the  petition,  it  cannot  be  granted  upon  the  default  of  de- 
fendant, so  as  to  render  it  available  as  a  personal  judgment, 
unless  there  is  personal  service.^ 

§  1084.  Judgment  Binds  Property.  —  The  effect  of  a  judgment 
rendered  by  default,  orj)7V  confesso,  upon  service  of  process  by 
publication,  except  in  proceedings  for  divorce,  is  only  to  bind 
the  property  of  the  defendant,  which  is  within  the  jurisdiction 
of  the  court,  and  against  which,  or  with  reference  to  which, 
the  suit  is  instituted.  Consequently  a  judgment  in  personam 
rendered  upon  such  process  is  void,^  As  a  further  consequence 
of  the  limitation  upon  the  jurisdiction  of  the  court  to  render 
judgment  upon  process  served  by  publication,  an  action  can- 
not be  maintained  upon  a  judgment  so  obtained  in  another 
state.* 

§  1085.  Judgment  not  Subject  to  Collateral  Attack.  —  Where 
there  has  been  a  defective  service  of  process  by  publication, 
and  a  judgment  or  decree  is  entered  in  pursuance  thereof,  the 
•proper  manner  of  taking  advantage  of  the  irregularity  is  by 

'  Mussina  v.  Moore,  13  Tex.,  7 ;  Kitchen  ».  Crawford,  Id-,  516. 

'Beard  «.  Beard.  21  Ind.,  321. 

'Cooper  I).  Smith,  25  la.,  269;  Mitchell  ■».  Gray,  18  Ind.,  123;  Judah  «. 
Stephenson,  10  la..  493;  Pomeroy  -».  Betts.  31  Mo.,  419.  But  see  Otis  ?). 
Dargan,  53  Ala.,  178,  where  it  was  held  that  Uie  heirs  of  a  decedent  were 
concluded  by  published  notice  of  final  settlftmenl. 

*  Chamberlain  v,.  Paris,  1  Mo.,  517;  Sallee  «.  Ilay.s,  3  Mo.,  116:  Winston 
n.  Taylor,  28  Mo.,  82. 


JUDICIAL    SALES.  407 

direct  proceeding  to  set  aside  such  judgment  or  decree,  as  it  has 
been  laid  down  as  a  rule  that  the  judgment  of  a  court  of 
general  jurisdiction  is  not  open  to  collateral  attack,  when  the 
record  upon  its  face  shows  it  to  be  regular.'  It  is  not 
enough  that  the  record  fails  to  show  jurisdiction,  affirmati^-ely. 
It  must  appear  affirmatively  that  the  court  did  not  have  juris- 
diction, otherwise  it  will  be  presumed.^ 


II.     Judicial  Sales. 

§1086.  Statutory  Requireineat,  Directory. 

1087.  Purchaser  with  Notice. 

1088.  Description  of  Property, 

1089.  Immaterial  Omissions. 

1090.  Changing  Name  of  Paper. 

1091.  Several  Executions  in  One  Advertisement. 

1092.  Sale  may  be  Adjourned. 

1093.  May  be  on  Alias  Execution. 
1091.  Eiror  in  Sheriff"'s  Return. 

1095.  Publication  in  Paper  where  Posting  Required. 

1096.  Failure  of  Notice,  will  not  Avoid  Sale. 

1097.  Strict  Compliance  Required. 

1098.  Sale  Void  for  want  of  Proper  Notice. 

1099.  No  Uniform  Rule  as  to  Notice  of  Sales. 

1100.  Time  of  Publication. 

1101.  Six  Weeks,  Notice. 

1102.  Once  a  Week,  for  Three  Months. 

1103.  What  Constitutes  Publication. 

1104.  Posting  in  Public  Places. 

§  1086.  Statutory  Requirement,  Directory. —  In  general,  a  strict 
adherence  to  statutory  requirements  is  not  so  essential  to 
a  valid  sale  under  a  judgment  or  decree  of  a  court,  as  it  is  to 

'Galpin  v.  Pago,  1  Sawyer,  309;  Hahn  v.  Kelly,  34  Cal.,  391;  Grignon's 
Lessees  v.  Astor,  2  How.  U.  S.,  319;  Voorhees  v.  Bank  U.  S.,  10  Pet.,  449; 
Sargeant  v.  State  Bank  of  Indiana,  12  How.,  371 ;  Huff  v.  Hutchinson,  14 
How.,  586;  Huntington  v.  Charlotte,  15  Vt.,  46;  Foote  v.  Stevens,  17  Wend., 
483;  Granger  v.  Clark,  22  Me.,  128. 

'■'  Supra. 


468  rUBLICATION    OF    NOTICES. 

the  support  of  a  title  acquired  under  an  involuntary  sale  made 
without  such  judgment  or  decree.  The  grounds  of  tlie  dis- 
tinction are  the  notoriety  of  the  proceedings  in  court  by  which 
the  judgment  was  obtained,  and  the  fact  of  defendant's  hav- 
ing already  been  brought  in  by  process,  and  consequently  is 
snpposed  to  watch  all  subsequent  proceediiigs  likely  to  affect 
his  interest,  until  the  property  levied  upon  to  satisfy  the  judg- 
ment has  been  disposed  of.  It  has  accordingly  been  held  that 
the  provision  of  the  statute  requiring  the  advertisement  of 
judicial  sales  was  directory,  and  that  a  purchaser  at  such  a 
sale,  made  without  the  publication  of  the  notice  directed  by 
the  statute,  who  purchased  without  an}"  knowledge  of  the 
omission  of  duty  by  the  officer,  would  take  a  good  title,  and 
any  one  injured  by  the  official  misprision  would  be  remanded 
to  his  remedy  against  the  delinquent  officer.^ 

§1087.  Purchaser  with  Notice.  —  Cut  where  the  purchaser 
takes  with  knowledge  of  the  failure  to  comply  with  the  require- 
ments of  the  statute  in  this  particular,  it  is  held  different!}'.- 

§  1088.  Description  of  Property.  — AYhen  tlie  property  is  adver- 
tised for  sale,  especially  if  it  be  real  estate,  the  published 
notice  sliould  contain  a  substantially  correct  description  of 
the  property,  as  the  title  of  the  judgment  debtor  to  the  prop- 
erty described  in  the  advertisement  is  all  the  interest  that 
will  pass  by  the  sale.  So,  where  the  description  was  in  such 
general  terms  as,  all  the  land  of  the  defendant.,  located  in  a 
particidnr  county,  this  was  held  insufficient  notice  of  sale,  to 
pass  the  judgment  debtor's  title  in  the  land  sold,  to  even  an 
innocent  purchaser.^ 

§  1089.  Immaterial  Omissions.  —  But  immaterial  variations  or 
omissions  in  the  description  of  the  property  would  not  onlj- 
not  operate  to  defeat  the  title  of  the  purchaser  at  the  sale,  but 


'  Minor  v.  Natchez,  4  S.  &  M.,  603;  Hendrick  v.  Davis,  27  Ga.,  167;  Johu- 
son  V.  Reese,  28  Ga.,  853;  Harvey  v.  Fisk,  9  Cal.,  93. 

»  Hayden  v.  Dunlap,  8  Bibb,  216;  Webber  v.  Cox,  6  Monr..  110. 

^Frazier  v.  Steenrod,  7  la,,  389;  Mervvin  v.  Smith,  3  N.  J.  Eq.,  182;  Rey- 
nolds V.  Wilson,  15  111.,  394. 


JUDICIAL    SALES.  4G9 

would  not  fiirnisli  grounds  for  an  action  agjainst  tlie  officer 
committing  tlie  error.  Thus  in  Duncan  v.  Matney,'  where  the 
sheriff,  in  the  advertisement,  omitted  to  mention  the  name  of 
the  county  in  wliich  the  propert}'  was  located.  As  it  is  gen- 
erally known  that  the  sherifl*  of  one  county  cannot  sell  land 
lying  in  anothei',  this  error  was  treated  as  immaterial. 

§1090.  €hauging  Name  of  Paper.  — Merely  changing  the 
name  of  the  paper  in  which  property  is  advertised  for  sale 
under  an  execution  issued  on  a  judgment  or  decree,  will  not 
have  the  effect  of  invalidating  a  sale  made  in  pursuance  of 
such  advertisement.- 

§  1091.  Several  Executions  in  One  Advertisement.  —  It  is  not 
necessary  that  there  should  he  a  separate  advertisement  for 
each  execution,  where  there  are  several  in  the  hands  of  the 
officer  at  the  same  time  against  the  same  defendant,^ 

§  1092.  Sale  3Iay  be  Adjourned.  —  It  has  been  held  that,  to 
render  the  sale  valid,  it  was  not  requisite  that  it  should  be 
made  on  the  ])recise  day  for  which  it  was  advertised,  if,  for 
good  reason,  it  should  be  found  necessary  to  adjourn  the  sale 
to  a  subsequent  day.  As  where,  upon  the  property  being 
stricken  off,  the  purchaser  was  allowed  until  another  day  to 
perfect  his  ai-rangements  for  payment,  and  verbal  notice  was 
given  that  the  sale  would  be  kept  open  until  that  time  ;  but 
the  successful  bidder,  failing  to  complete  his  purchase  within 
the  allotted  time,  the  officer  proceeded  to  sell  the  property 
without  further  publication  of  notice.  The  title  acquired  under 
this  sale  was  held  valid,  because  it  did  not  appear  that  the 
property  was  sold  for  an  inadequate  price  in  consequence  of  a 
failure  to  re-advertise.^ 

§  1093.  May  he  on  Alias  Execution.  —  Where  an  advertisement 
had  been  published,  and  before  the  day  of  sale  as  therein  speci- 
fied, the  original  venditioni  exponas  was  returned  and  an  alias 
issued,  which  was  in  the  hands  of  the  officer  at  the  time  of  the 

1  29  Mo.,  :U)8. 

«  Isaacs  V.  SliatUick,  13  Vt.,  608. 
"Arnold  «.  Din.sniorc,  ;J  Cold.,  235. 
"  Isbell  V.  Kenyon,  33  Mich.,  G3. 


470  PUBLICATION    OF    NOTICES. 

sale,  such  sale  was  held  valid,  though  the  original  writ  under 
which  the  publication  was  made,  had  expired,  and  there  was 
no  publication  of  notice  after  the  alias  was  issued.^ 

§  1094.  Error  in  Sheriff's  Return.  —  Where  the  sheriif,  in 
making  his  return,  committed  an  error  in  the  description  of 
the  real  estate,  with  reference  to  the  numbers,  and  such  error 
was  continued  in  the  advertisement,  this  was  held  not  to  inval- 
idate the  sale,  so  as  to  affect  the  title  in  the  hands  of  an  inno- 
cent purchaser,  as  against  a  subsequent  purchaser  of  the  same 
property  by  a  correct  description,  who  took  with  knowledge  of 
the  first  purchase.^  This  was  so  decided  where  a  suit  in 
chancery  was  brought  by  the  first  purchaser,  to  cancel  the 
second  deed,  although  it  had  previously  been  decided  by  the 
same  court  that  to  constitute  a  valid  deed,  under  an  execution 
sale,  there  must  be  an  advertisement  of  the  sale.^ 

§  1095.  Publication  in  Paper  wliere  Posting  Required.  —  So, 
where  the  statute  provided  for  the  publication  of  notice  of 
sale,  by  posting  written  or  ]irinted  copies  in  public  places 
within  the  county,  and  the  oflicer  omitted  entirely  to  give  tlie 
notice  in  the  prescribed  manner,  but  published  it  in  a  news- 
paper, it  was  held  that  this  irregularit}'  would  not  vitiate  a 
sale  of  either  real  or  personal  property,  made  in  pursuance  of 
notice  so  published.^ 

§  1096.  Failure  of  N(»tioe  will  not  Avoid  Sale.  —  There  are 
other  cases  decided  under  statutes  requiring  the  publication  of 
notice  of  judicial  sales,  either  by  advertisement  in  a  newspaper 
for  a  specified  time,  or  by  a  certain  number  of  insertions,  or 
by  posting  co])ies  of  the  notice  in  public  places,  where  it  is 
held  that  this  requirement  of  the  statute  is  merely  directory,  and 
a  failure  or  omission  to  publish  the  notice  will  merely  have  the 
efiect  to  render  the  delinquent  officer  liable  to  any  one  injured 

'  Luther  r>.  McMichael,  6  Humph.,  298. 

^  Steward  v.  Pettigrew,  28  Ark.,  372.  See,  also,  Nt-wton  o.  State  Bauk,  14 
Ark.,  9;  Ringold  ».  Pattersou.  15 /d.,  209 ;  Xewtou's  Heirs  ».  State  Bank, 
22  Id.,  19. 

s  Hughes  D.  Watt,  26  Ark.,  328. 

*  Miner  t\  Natcliez,  4  Sm.  &  ]\Iarsh.,  602. 


JUDICIAL    SALES.  471 

by  liis  misprision,  and  will  not  affect  the  title  of  a  purchaser 
at  the  sale/ 

§  1097.  Strict  Compliance  Required.  —  Upon  the  other  hand, 
the  cases  decided  under  similar  statutes  are  quite  numerous, 
where  a  strict  compliance  with  the  statutory  provisions  in 
respect  to  notice  of  sale  is  required,  in  oi'der  to  divest  the  title 
of  the  judgment  debtor.^ 

§  1098.  Sale  Void  for  want  of  Proper  Notice.—  In  Mitchell  v. 
Lipe,^  the  sale  was  held  void  under  the  statute  for  the  want  of 
the  notice  prescribed,  even  where  the  judgment  debtor  had 
requested  the  sheriff  to  make  the  lev}',  it  being  held  that 
such  request  did  -not  amount  to  a  waiver  of  notice.  And  in 
Underwood  v.  Jeans,"*  the  publication  actually  made  was 
acknowledged  to  be  even  more  ample  than  the  law  required ; 
but  the  statutory  manner  of  giving  notice,  being  by  posting 
one  copy  in  each  hundred  of  the  county  ten  days  prior  to  the 
day  of  sale,  a  failure  to  prove  the  posting  of  a  copy  of  such 
notice  in  one  of  the  hundreds  for  the  full  time  was  held  fatal 
to  the  validity  of  the  sale. 

§  1099.  No  Uniform  Rule  as  to  Notice  of  Sales.  —  The  statutes 
of  the  several  states,  governing  judicial  sales,  though  similar 
differ  sufficiently  to  admit  of  different  construction  by  the 
courts.  They  are  also  more  or  less  modified  or  affected  by  other 
statutes,  which  facts  render  it  exceedingly  difficult  to  deduce, 
from  the  authorities  examined,  any  thing  like  a  rule  as  to  the 


'  Hudgcns  V.  Jackson,  51  Ala.,514 ;  Smith  v.  Randall,  6  Cal.,  47 ;  Ante  §  1086, 
note.  See  Reynolds  ®.  Harris,  14  Cal.,  G67 ;  where  it  was  held  that  a  pur- 
chaser would  on! J'  bo  ]>rotectecl  where  he  had  paid  the  purchase  money 
before  notice. 

'  Trott).  McGavock,  1  Yer<i-.,  Tenn.),  Am ;  Loyd  «.  Anglin,  7  Id.,  428 ;  Mitchell 
V  Lipe,  8  Yerg.,  179 ;  Underwood  o.  .Jeans,  4  Harr.  (Del.),  201 ;  Burton  tj. 
Wolfe,  Id.,  221 ;  Gernon  v.  Bestick,  15  La.  An.,  697 ;  Russell  v.  Dyer,  40  N.  H., 
173.  See  Blair  v.  Compton,  33  Mich.,  414;  where  it  is  laid  down  that 
a  sale  was  void  as  to  tlie  excess  in  number  of  shares  of  stock  sold  en  masse, 
over  what  was  stated  to  be  the  number  at  the  time,  though  a  larger  number 
had  been  advertised. 

^  Supra. 

*  Supra. 


472  PUBLICATION    OF    NOTICES. 

effect  of  an  entire  want  of  notice,  or  of  insufficient  notice  of  a 
sale  made  under  judgment  or  decree  of  court. 

§  1100.  Time  of  Publication.  —  JS^evertlieless,  there  are  certain 
questions  affecting  the  giving  of  notice  of  sale  by  publication, 
which  are  likely  to  arise  in  any  case  where  it  becomes  neces- 
sary to  give  judicial  construction  to  the  language  of  a  statute. 
The  time  for  which  the  notice  is  published  is  one  of  the  most 
important  of  these,  for,  although  defects  in  this  particular  will 
not,  in  every  instance,  prove  fatal  to  the  title  after  payment  of 
the  purchase  money  and  delivery  of  the  deed,  it  may  be  raised 
at  a  time  when  it  will  serve  to  obstruct  the  perfecting  of  the 
purchaser's  title,  by  furnishing  grounds  for  an  objection  to  the 
approval  of  the  sale. 

§  1101.  Six  AVeeks"  Notice.  —  Where  the  statute  required  six 
weeks''  notice  to  be  given,  and  under  this  provision  designated 
the  7nanner  of  giving  such  notice  to  be  by  fastening  up  the 
same  for  six  successive  weeks,  and  b}'  publication  in  a  news- 
paper once  a  week,  for  six  successive  weeks,  the  law  was  held 
to  be  sufficiently  complied  with  by  posting  the  notice  as 
required,  and  by  publication  once  in  each  week  of  the  six, 
although  the  full  term  did  not  elapse  between  the  lirst  publi- 
cation and  the  day  of  the  sale. ' 

§  1102.  Once  a  Week,  for  Three  Months.  —  So,  where  a  statute 
requires  the  notice  to  be  published  once  a  week,  for  three 
ononths,  or  for  three  successive  xoeeks,  the  law  is  satisfied  by 
an  insertion  in  the  paper  once  in  each  week,  as  time  is  divided, 
regardless  of  the  fact  that  a  period  longer  or  shorter  than  seven 
days  intervenes  between  successive  issues  of  the  paper.- 

§1103.  What  Constitutes  Publication.  —In  Pratt  v.  Tinkcom,^ 
where  the  statute  required  six  weeks'  notice  of  a  sale,  it  was 
held  that  the  fir»t  publication,  being  on  the  first  day  of  Febru- 

'  Olcott  «.  Robinson,  21  N.  Y.,  150,  reversiug  the  .judomcnt  of  the  General 
Term,  reported  20  Barb.,  143.  See  Nailer.  Femvick,  4  Hand.,  585;  Elliott  v. 
Eddins,  24  Ala.,  508. 

■  Rockendorft'  «.  TayU)r's  Lessee,  4  Pet.,  349;  BaclieUn-  ®.  Bachelor,  1 
Mass.,  256;  Pearson  «.  Bradley,  48  111.,  250;  Cass  v.  Bellows,  31  N.  H.,  501. 

=•21  Minn.,  142. 


JUDICIAL    SALES.  473 

ary,  would  not  autliorize  a  sale  ou  the  tenth  day  of  March,  and 
that  the  defect  could  not  be  cured  by  adjourning  the  sale  and 
continuing  the  notice  to  the  seventeenth.  It  was  also  decided, 
in  the  same  case,  that  papers  sent  to  the  postoffice,  some  for 
transmission  through  the  mails,  and  others  for  local  delivery, 
are  jpuhllslied  when  deposited  in  the  postoffice,  regardless  of 
the  dates  borne  by  the  papers.  Consequently,  Mdiere  jive-sixths 
of  the  edition  dated  \\\q  twenty -fifth  were  issued  on  the  twenty - 
fourth^  the  publication  would  not  be  considered  as  of  the  date 
when  but  one-sixth  of  the  papers  were  issued. 

§1104.  Posting  ill  Public  Places.  —  In  Sowards  v.  Pritchett, 
the  important  matter  of  inquiry  was  as  to  what  was  a  suffi- 
cient compliance  with  a  statute  requiring  notice  of  the  sale  to 
be  posted  at  five  public  places  in  the  neighborhood.  Two 
copies  of  the  notice  wei'e  posted  at  school  houses,  but  it  did 
not  appear  that  they  were  occupied  at  the  time.  The  others 
were  posted  near  three  different  roads,  but  one  of  M'hich  was 
mentioned  as  a  inilMc  road,  leaving  the  inference  that  the 
other  two  were  private  thoroughfares.  Six  persons  living  in 
the  vicinity  of  the  land  sold  had  never  seen  any  of  the  notices, 
none  of  which  were  posted  about  the  court  house,  nor  was 
publication  made  in  the  county  newspaper.  Bnt  few  persons 
attended  the  sale,  and  the  property  brought  about  two-thirds 
of  its  value.  Under  these  circumstances,  the  notice  was  held 
insufficient,  although,  in  the  same  case,  it  was  decided  that 
mere  shortness  of  the  time  of  publication,  where  no  j)eriod 
was  fixed  by  the  decree,  when  taken  alone,  would  not  waiTant 
setting  aside  the  sale,  but  might  be  considered  in  connection 
with  the  other  irregularities  and  the  inadequacy  of  the  price 
for  which  the  land  was  sold. 

'  37  111.,  517. 


474  PUBLICATIOM    OF    NOTICES. 


III.     Now-Judicial  Involuntary  Sai.E8. 


§;  1105.  Strict  Compliance  ■with  Statute  Required. 

1106.  Tax  Sales. 

1107.  Publication  an  Otiicial  Act 

1108.  When  State  Printer  Designated. 

1109.  Should  State  the  Amount  Due. 

1110.  Should  give  Name  of  Tax  Debtor. 

1111.  Time  Fixed  by  Statute  to  be  Closely  Followed. 

1112.  Sale  held  Void  after  Fifty  Years. 

1113.  Construction  as  to  Time. 

1114.  Three  Successive  Publications  for  Three  Months. 

1115.  During  Three  Successive  Weeks. 

1116.  Should  Commence  after  Tax  becomes  Due. 

1117.  Form  and  Sufiicieucy. 

1118.  When  Form  Proscribed  by  Statute. 

1119.  Proof  of  Publication. 

1120.  Statutory  mode  of  Proof  Exclusive. 

1121.  Required  Certiticate  must  be  Certain  in  Statement. 


§  1105.  Strict  Compliance  with  Statute  Required.  —  Involnntary 
sales,  made  in  pursuance  of  a  statutory  power,  without  a  judg- 
ment or  decree  of  court,  are  less  favorably  considered,  and  the 
prerequisites  to  the  exercise  of  the  power  are  more  rigidly 
exacted  than  where  there  has  been  an  attempt  to  give  the 
property  owner  his  day  in  court,  and  where  he  lias  at  least  had 
notice  of  the  institution  of  proceedings  which  might  eventuate 
in  the  sale  of  his  property.  Titles  acquired  under  non-judicial 
involuntary  sales  are  aided  by  no  presumptions  in  their  favor, 
but  must  depend  for  their  validity  upon  a  strict  compliance 
with  the  statutes  by  which  they  are  authorized.  And  no 
statutory  requirement  is  regarded  as  of  more  importance  than 
that  in  relation  to  notice  of  sale. 

§1106  Tax  Sale.<«. — The  greater  number  of  sales  of  this 
kind,  M'hich  have  been  the  subject  of  judicial  controversy,  with 


NON-JITDICIAL    INVOLUNTARY    SALES.  475 

respect  to  the  matter  of  notice,  are  such  as  are  made  to  satisfy 
the  demands  of  the  state  or  municipality  for  unpaid  taxes  on 
real  property.  The  manner  of  giving  notice  of  such  sales,  both 
to  tax  debtors  and  to  the  public,  is  by  advertisement  in  news- 
papers. Where  this  is  the  mode  designated,  the  language  of 
the  statute  is  mandatory  upon  the  officer  whose  duty  it  is  to 
make  the  sale,  the  validity  of  which  depends  upon  strict  com- 
pliance.^ 

§  1107.  Publication  an  Official  Act.  —  The  publication  of  the 
notice  is  an  official  act,  and  the  advertisement  must  therefore 
be  signed  by  the  officer  designated  by  statute  to  give  the  notice. 
It  is  not  enough  that  he  is  the  officer  electa  who,  after  the 
insertion  of  the  advertisement  in  the  newspaper  is  duly  quali- 
fied. Such  subsequent  qualification  will  not  take  effect  by 
relation,  and  clothe  the  act  performed  before  the  officer  had 
been  thereto  empowered,  with  an  official  character,  and  so 
render  valid  and  binding  a  sale  made  in  pursuance  of  such 
published  notice.^ 

§  1108.  AVhen  State  Printer  Designated.  —  Where  the  statute 
prescribed  that  the  notice  of  sale  should  be  advertised  in  a 
paper  published  by  the  state  printer,  but  after  the  insertion  of 
the  notice  in  sucli  official  paper,  and  before  the  expiration  of 
the  time  prescribed  for  the  publication,  the  publisher  of  the 
paper  ceased  to  be  tlie  state  printer,  such  publication  was  held 
insufficient,  and  a  sale  in  pursuance  thereof,  utterly  void.^ 

§  1109.  Should  State  the  Amount  Due\  —  The  notice  as  pub- 
lished should  contain  a  correct  statement  of  the  amount  due,* 
the  true  object  of  the  tax,^  an  accurate  description  of  the  prop- 
erty,® and  the  name  of  tlie  tax  debtor." 

'  Williams  v.  Peyton,  4  Wheat.,  77 ;  Early  v.  Doe,  16  How.,  610. 
''Laugdon  «.  Poor,  20  Vt.,  13;    Spear  «.  Ditty,  9  Vt.,  282 ;  Brouglitoii  v. 
Journeay,  51  Penn.  St.,  31. 

'Bussey  v.  Leavitt,  12  Me.,  378;  Pope  v.  Hcaden,  5  Ala.,  433. 

*  Eastman  v.  Little,  5  N.  H.,  290;  4  Hill,  92. 

•'■Pierce  ■». Richardson, 37  N.  H.,  30G;Laugdon  t.  Poor,  Supra. 

•  Patricks.  Davis,  15  Ark.,  363;   Tall m an  i).  White,  2  N.  Y..  66. 

'  Washington  v.  Prait,  8  Wheat.,  681 ;  Pierce  c.  Richardson,  37  N.  H.,  306; 
Alvord  V.  Collin,  20  Pick.,  418:  Miller  v.  Graham,  17  Ohio  St.,  1. 


476  PUBLICATION    OF    NOTICES. 

§1110.  Should  give  Name  of  Tax  Debtor. — The  strictness  of 
the  rule  laid  down  with  respect  to  a  statement  of  the  name 
of  the  tax  debtor  and  the  amount  of  the  tax,  are  both  fairly 
illustrated  in  Eastman  v.  Little.^  There  the  form  of  notice 
followed  was  one  prescribed  bv  the  Secretary  of  the  Treasury, 
who  was  authorized  by  statute  to  establish  the  necessary  regu- 
lations for  carrying  the  revenue  laws  into  effect,  yet  for  a 
failure  to  state  in  the  advertisement  the  name  of  the  tax  debtor, 
and  the  amount  due  oa  each  piece  of  land  separately,  the  sale 
was  declared  to  be  void.'- 

§1111.  Time  Fixed  by  Statute  to  be  Closely  Followed.  — How- 
soever arbitrarily  the  time  for  the  commencement,  and  con- 
tinuation of  the  publication  may  be  fixed  by  statute,  its 
provisions  must  be  closely  followed  in  order  to  divest  the  title 
of  the  tax  debtor.  Accordingly  where  the  advertisement  was 
changed  after  the  expiration  of  a  part  of  the  prescribed  period 
of  publication,  and  a  new  day  of  sale  fixed,  even  with  the 
consent  of  the  tax  debtor,  the  sale  was  declared  void.^  Never- 
theless, where  a  certain  number  of  days  are  designated,  the 
last  publication  to  be  so  many  days  before  the  sale,  the  fact 
that  the  advertisement  was  published  after  this  day  would  not 
affect  the  validity  of  the  sale  to  defeat  it  for  non-compliance 
with  the  statute.  Keither  would  it  operate  to  cure  a  failure 
to  make  the  publication  earh'  enough  to  give  it  the  full  time 
pi-escribed  by  statute,  between  the  first  and  the  last  day. 

Mil--  Sale  held  Void  after  Fifty  Years.  —  In  Farrar  v.  East- 
man/ decided  in  1833,  with  reference  to  the  validity  of  a  sale 
which  took  place  is  1780,  under  tlie  provincial  act  of  26  Geo. 
II,  requiring  forty  days'  notice,  the  tax  for  which  tlie  land  was 
sold,  appeared  to  have  been  voted  only  thirteen  days  before  the 
date  of  the  tax  deed.  The  court,  with  every  inclination  in  the 
direction  of  sustaining  a  transaction  of  so  many  years'  stand- 


•  Supra, 

*  See,  also,  Shi  mm  in  v.  Ininau,  26  Me.,  228;  Sargent  v.  Bean,  7  Gray,  125. 
3  Scales  «.  Aves..  12  Ala.,  (il7. 

no  Me.,  191. 


NON-JUDICIAL    INVOLUNTARY    SALES.  477 

iiig,  held  the  sale  void,  as  it  was  impossible  under  the  circum- 
stances, that  forty  days'  notice  could  have  been  given. 

§  1113.  Construction  as  to  Time.  —  Where  the  time  prescribed 
for  the  publication  is  stated  loosely  as  so  many  days,  weeks,  or 
months,  without  specifying  how  long  before  the  day  of  sale 
such  publication  shall  l)e  completed,  it  will  be  understood  to 
mean  a  continuous  publication  immediately  preceding  the 
sale.  As,  for  example,  where  the  statute  required  three  months'' 
notice,  the  court  construed  this  to  mean  the  three  successive 
raonths  next  'preceding  the  sale.  And  the  advertisement 
being  published  during  the  month  of  December,  omitting 
January,  but  was  afterwards  inserted  during  the  months  of 
February  and  March,  this  was  held  insufficient  to  authorize  a 
sale  in  April.^ 

§  1114.  Three  Successive  Publications,  for  Three  Months.  — 
"  Three  successive  publications  in  a  newspaper,  three  months 
prior  to  the  sale  "  was  held  to  require  tliat  the  last  insertion 
should  be  three  months  prior  to  the  day  of  sale."^ 

§1115.  During  Three  Successive  Weeks.  —  Where  the  notice 
was  required  to  be  published  "during  three  successive  weeks," 
this  was  held  to  mean  three  fall  loeeks^  or  twenty-one  days 
from  the  first  publication.^ 

§1116.  Should  Commence  after  Tax  becomes  Due. —  A  further 
important  requisite  as  to  time,  is  that  the  publication  should 
commence  after  the  tax  becomes  due;  and  when  the  statute 
requires  a  return  to  be  made  of  a  list  of  delinquents,  and  the 
intervention  of  a  certain  time  between  such  return  and  the 
publication  of  the  notice,  the  statutory  period  must  have 
elapsed,  in  order  to  render  the  publication  sufficient  to  support 
a  title  acquired  under  the  sale.^ 

§  1117.  Form  and  Sufliciency.  —  The  form  of  the  notice  of  sale 
is  generally  prescribed  by  statute;  but  where  there  is  no  such 

'  Delogney  v.  Smith,  3  La.,  418. 

*  Bussy  V.  Leavitt,  12  Me.,  378. 

*Franci.s  v.  Norris,  2  Miles,  150;  Pennell  v.  Monroe,  30  Ark.,  661. 

•Rockendorff  v.  Taylor,  4  Pet.,  34'J;  Early  v.  Doe,  16  How.,  610. 


478  PUBLICATION    OF    NOTICES. 

statutorj  form,  the  laiio-uage  of  the  published  notice  should 
be  sufficiently  clear  and  unequivocal  to  convey  the  necessary 
information  to  both  tax  debtor  and  the  public.  If  it  is  so 
expressed,  as  to  contain  all  the  statements  required  by  statute, 
it  will  be  sufficiently  formal,  however  inartificially  it  may  be 
drawn. ^ 

§  1118.  When  Form  Prescribed  bj^  Statute,  —  It  has  been  laid 
down  b}"  a  very  able  text  writer,  that  where  a  certain  form  of 
notice  is  prescribed,  it  must  be  "  strictly,  if  not  literally,  fol- 
lowed."^ This  statement  of  the  doctrine  is  questioned  by 
Judge  CooLEY,  who  denies  that  the  law  ever  requires  a  literal 
adhesion  to  forms.^  The  conclusion  reached  by  the  last  men- 
tioned author,  seems  to  be  supported  by  much  the  better 
reason. 

§1119.  Proof  of  Publication. —  The  proof  of  publication  ordi- 
narily required  is  the  affidavit  of  the  printer  or  publisher  ot 
the  newspaper  containing  the  advertisement.  If  upon  its  face, 
it  appears  insufficient,  either  in  point  of  time  or  publication, 
or  contents  of  the  notice,  parol  proof  will  in  general  be  held 
inadmissible  for  the  purpose  of  supplying  the  deficiency  or 
explaining  the  omission.^ 

§  1120.  Statutorj^  Mode  of  Proof  Exclnsive. —  Sales  of  this  kind 
being  in  the  nature  of  forfeitures,  are  not  favored  by  the  courts, 
in  the  proof  of  compliance  with  the  statute.  As,  where  the  law 
required  the  delinquent  list  and  the  notice  to  be  recorded,  for  the 
purpose  of  perpetuating  the  evidence  of  the  time  of  publication, 
this  means  of  showing  a  compliance  Avith  the  statute  was  held 
to  be  exclusive  of  all  others,  as  against  those  claiming  under 
the  tax  sale,  who  would  not  be  permitted  to  prove  by  matters 
de  hoi's  that  the  notice  had  ])een  published  for  the  statutory 


1  Chaudler  v.  Spear,  22  Vt.,  388 ;  Hobbs  v.  Cleiueuts,  33  Me.,  67. 

"-  Blackwell  on  Tax  Titles,  223. 

»Cooley  on  Taxation,  337,  n.,  2. 

*  Finch  V.  Pincliard,  5  111.,  69;  Nelson  v.  Pierce,  6  N.  H..  194;  People 
T.  Highway  Comr's.,  14  Mich.,  528 ;  Lovejoy  v.  Lunt,  48  Me.,  377 ;  Sexton  v. 
Khames,  13  Wis,,  99. 


MISCELLANEOUS    PKOCEEDINGS.  479 

time;  altliou^li  one  claiming  adversely  to  the  tax  title  would 
not  be  so  concluded.^ 

§  1121.  Required  Certificate  must  be  Certain  in  Statement, — An 
official  certificate  wliicli  the  law  designates  as  the  proper  means 
of  authenticating  the  publication  of  a  notice,  must  be  unequivo- 
cal and  certain  in  its  statements.  As  where  the  county  auditor 
was  required  to  publish  notices  by  posting  them  in  certain 
localities,  and  his  certificate  stated  that  he  had  delivered  copies 
of  the  notices  to  another  officer,  who,  he  believed,  had  posted 
them  in  the  places  required  by  law,  the  certificate  was  held 
fatally  defective,  and  its  omissions  could  not  be  supplied  by 
parol  evidence.^  And  where  the  treasurer  failed  to  authenti- 
cate a  copy  of  the  printed  advertisement,  as  required  by  law, 
this  omission,  it  was  held,  rendered  the  sale  void.^ 


IV.  Miscellaneous  Proceedings. 

§  1122.  General  Remarks. 

1123.  Contract  for  Public  Improvements. 

1124.  Special  Assessments. 

1125.  Notice  of  Intention  to  order  Improvements. 

1126.  Notice  of  Opening  Streets. 

1127.  Eminent  Domain. 

1128.  Sales  by  Guardians  and  Curators. 

1129.  Executor's  Sale. 

1130.  Sold  for  Paj'ing  Debts  of  Deceased. 

1131.  Executor's  Notice — IIow  Addressed. 

1132.  Meeting  to  Divide  Township. 

1133.  Mortgagee's  Sales, 

1134.  Matters  Noticed  Elsewhere. 

§  1122.   General  Remark-K.  —  There  are  pi'oceedings  by  which 
the  proprietory  rights  of  individuals  are  affected,   notice   of 

'  Kellogg  V.  McLaughlin,  8  Ohio,  114. 

■^  Df)e  V.  Sweetser,  2  Tnd.,  (i49. 

■Flint  V.  Sawyer,  30  Me.,  2'30;  Hill  v.  Mason,  38  Id.,  461. 


480  PUBLICATION    OF   NuTICES. 

which  may  be  given  by  publication  in  a  newspaper  or  by  post- 
ing copies  in  certain  designated  localities.  But  in  order  to 
give  such  publication  the  effect  of  actual  notice  to  the  party 
whose  rights  are  affected  by  the  proceeding,  regardless  of 
whether  he  reads  the  advertisement  or  not,  it  is  necessary  that 
tliis  mode  of  notification  should  be  authorized  by  statute,  and 
that  the  statute  by  which  it  is  authorized,  being  in  derogation 
of  common  law,  should  be  strictly  construed  and  closely  pur- 
sued. When  the  proceeding  closely  resembles  one  of  a  judi- 
cial character,  in  the  sense  that  there  is  a  hearing  and  adjudi- 
cation before  a  judicial  tribunal,  the  strictness  of  construction 
seems  to  be  somewhat  relaxed  for  reasons  heretofore  stated,' 
but  when  the  ultimate  purpose  of  the  proceeding  is  to  divest 
the  title  of  the  property  owner  by  forfeiture^  without  giving 
him  an  opportunity  to  be  heard  in  defense  of  his  rights,  the 
strictest  observance  of  statutory  requirements  is  exacted,  in 
order  to  render  such  notice  effectual. 

§1123.  Contract  for  Public  Improvements.  —  Among  the  mat- 
ters which  may  be  constructively  brought  to  the  knowledge  of 
those  whose  rights  are  to  be  affected,  is  the  letting  of  contracts 
for  the  graduation  or  other  improvement  of  streets,  alleys  and 
other  public  thoroughfares,  where  the  cost  of  such  improvement 
is  to  be  made  a  charge  upon  adjacent  property.  These  charges, 
though  a  species  of  taxation,  are  not  generally  so  denominated, 
but  are  known  by  the  distinguishing  appellation  of  "Special 
Assessments,"'  and  where  notice  prior  to  such  assessment  is 
required  to  be  published,  the  assessment  will  only  be  valid 
when  there  has  been  a  substantial  compliance  with  the  statute 
in  this  and  everj'  other  important  particular.^ 

§1124.  Special  Assessments. — The  rules  governing  notice  of 
involuntary  sales,  made  without  the  judgment  of  a  court,  will 
generally  be  found  applicable  to  special  assessments.^ 

'  See  Ante  II. 

'Emery  «.  Gas  Co.,  28  Cal.,  345;  Argenti  v.  San  Francisco,  16  Cal.,  255; 
People  ■;;.  Whyler,  41  Cal.,  351 ;  City  paying  for  opening  streets,  20  La.  An., 
497;  Garrett  v.  St.  Louis,  25  Mo.,  505. 

'2  Dillon  Mimic.  Corp.,  g  605,  and  cases  cited. 

*Ante  Pt.  Ill,  of  this  Chapter. 


MISCELLANEOUS    PROCEEDINGS.  481 

§  1125.  Notice  of  Intention  to  Order  Improvements.  —  In  Has- 
kell V.  Bartlett/  under  a  statute  requiring  publication  of  a 
notice  of  intention  to  order  improvements  upon  streets,  in  the 
paper  having  the  city  and  county  printing,  for  ten  days  succes- 
sively, excepting  Sunday;'^  and  where  there  was  another  stat- 
ute in  force  requiring  the  city  printing  to  be  in  a  paper  pub- 
lished within  the  city,^  the  court  had  occasion  in  construing 
the  two  statutes  to  define  the  word  "  published."  The  paper 
in  which  the  notice  was  printed,  published  daily,  both  morning 
and  evening  editions, — the  morning  edition  for  circulation  in 
the  city,  and  the  evening  edition  for  the  country.  The  notice 
appeared  in  the  morning  edition;  but  for  two  days  of  the  ten 
this  edition  was  not  printed,  and  it  did  not  appear  that  the 
evening  edition  containing  the  notice  for  these  two  days  was 
circulated  in  the  city.  The  publication  was  held  insufficient, 
as  the  paper  to  he  published  within  the  city,  should  have  been 
circulated  as  well  as  printed  there. 

§  1126.  Notice  of  Opening  Streets. — Where  the  statute  required 
notice  of  the  opening  of  streets  to  be  published  in  two  papers 
in  a  city,  in  order  to  afford  owners  of  lots  an  opportunity  to 
make  application  for  damages,  there  being  but  one  paper  pub- 
lished in  the  city,  it  was  held  that  the  insertion  of  the  notice 
in  that  for  the  required  time,  together  with  personal  notice  to 
the  owner  of  the  lot  in  question,  was  a  sufficient  compliance 
with  the  statute  to  enable  the  city  to  recover  the  assessments.'* 
It  would  probably  have  been  held  the  same  way  had  the  stat- 
ute requiring  notice  had  any  other  object  than  the  one 
declared.  It  is  apparent  that  in  this  case  there  was  a 
sufficient  excuse  for  not  pursuing  the  letter  of  the  statute 
strictly,  when  it  was  followed  in  its  spirit,  as  closely  as  possi- 
ble under  the  circumstances.^ 


1  34  Cal.,  281. 

»Cal.  Stats.,  1802,  p.  403,  §25. 

'Cal.  Stats.,  1850,  pp.  10-3-4,  gt^68-9. 

*  Darlington  v.  Coinmonwoaltli,  41  Penn.,  St.  68. 

^Wood  V.  Blanchiud,  19  111.,  38. 

31 


482  PUBLICATION    OF    XOTICES.- 

§  1127.  Eminent  Domain.  —  Where  the  state  or  nation,  or  one 
acting  under  powers  delegated  by  proper  authority,  in  the 
exercise  of  the  right  of  emiyient  domain  undertakes  to  con- 
demn private  property  to  public  use,  it  must  not  only  be  done 
in  strict  subordination  to  the  constitutional  provision  requiring 
just  <;onipensation  to  be  paid  to  the  private  owner,  but  the 
power  of  condemnation  must  be  exercised  in  conformity  to  the 
statate  by  which  it  is  authorized.  Proceedings  for  this  pur- 
"|>ose  var}'^  considerably  in  different  states,  being  to  a  greater  or 
less  degree  judicial  in  their  character.  But  in  all  notice  in 
some  form  or  other,  to  private  owners,  is  an  essential  prelim- 
inary. Where  the  owner  of  the  land  to  be  taken  is  a  non-resi- 
^dent  of  the  state  in  which  the  same  is  situated,  he  is  generally 
notified  1>y  publication.  In  cases  of  this  kind  the  same  strict 
construction,  and  close  following  of  the  statute  is  required,  as 
i a  ease  of  involuntary  sales  without  judgment  or  decree;^  but 
a  failure  to  give  notice  as  required  by  statute,  could  not  be 
taken  advantage  of,  when  all  the  parties  in  interest  voluntarily 
appeared  at  the  time  and  place  for  which  the  notice  should 
Lave  been  given. ^ 

§  1128.  Sales  by  Guardians  and  Cnrators.  —  There  are  other 
proceedings  which  have  for  their  ultimate  object  the  sale  of 
property  by  those  acting  in  a  fiduciary  capacity,  as  guardians  of 
infants  or  insane  persons,  and  administrators  or  executors  of 
estates  of  decedents.  An  order  of  sale  is  required  in  such 
■cases,  and  is  in  general  only  granted  after  a  hearing  of  which 
there  must  be  notice  given  by  publication  or  otherwise.  This 
notice  when  by  publication  being  of  a  proceeding  somewhat 
in.  the  nature  of  an  adjudication,  is  governed  to  a  considerable 
■extent  by  the  rules  applicable  to  the  service  of  original  process 
in  the  same  manner.  It  has,  nevertheless,  been  held  that  the 
title  of  a  purchaser  at  such  sale  would  not  be  affected   by  a 

'JHarbeck  v.  Toledo,  11  O.  St.,  219;  Darlington  ».  CommonweaUh,  41 
Peon.  St,  68;  Kidder  v.  Peoria,  29  111.,  77;  Speclit  v.  Detroit,  20  Mich.,  168; 
jBaltimore  v.  Bouldin,  23  Md.,  328. 

^'Ea.st  Saginaw  &  St.  Clair  R.  R.  Co.-b.  Benliam,  28  Mich.,  ■459. 


MISCELLANEOUS    PROCEEDINGS.  483 

failure  to  publish  the  notice  of  application  for  "  license  to  sell," 
for  full  four  weeks,  as  prescribed  by  statute.^ 

§  1129.  Executor's  Sale.  —  Where  the  statute  required  notice 
of  executor's  sale  to  be  bj  posting  copies  in  three  public  places 
in  the  count  j,  "  or  by  publication  in  a  newspaper,  if  the  judge 
should  so  order,"  there  being  no  evidence  of  the  posting  of  the 
copies  as  required  bj  statute,  and  no  order  for  the  publication 
in  a  newspaper,  proof  of  the  publication  having  been  made  in 
a  newspaper  was  held  insufficient  to  warrant  the  sale.^ 

§1130.  Sold  for  Paying  Debts  of  Deceased.  —  There  must  also 
be  strict  compliance  with  the  statutes  authorizing  the  sale  of 
real  estate  of  deceased  persons,  by  executors  or  administrators, 
for  the  purpose  of  paying  the  debts  of  deceased,  or  otherwise 
fulfilling  the  duties  of  administration,  with  respect  to  the  time 
for  which  notice  is  required  to  be  published,  to  all  persons 
interested  to  appear  and  show  cause,  etc.,  and  such  time,  when 
prescribed  by  statute,  cannot  be  abbreviated  by  order  of  the 
court  so  as  to  authorize  a  sale.^ 

§  1131.  Executor's  Notice^How  Addressed. — Published  notices 
cannot  be  addressed  bj executors  and  administrators,  specifically 
by  name  to  all  those  who  are  to  be  afl:ected,  for  the  reason  that 
they  are  so  numerous  as  to  render  such  a  course  impracticable, 
even  where  the  personal  representative  was  cognizant  of  all 
their  names.  It  has  accordingly  been  held  that  a  notice  pub- 
lished by  an  executor,  addressed  "to  the  heirs  at  law,  next  of 
kin,  and  all  other  persons,  interested  in  the  estate  of,"  etc.,  was 
sufficient.'' 

§1132.  Meeting  to  Divide  Townsliip. — Where  notice  of  the 
time  and  place  of  meeting  to  divide  the  townships,  was  required 
by  statute  to  be  published  tJivee  weeks  hefore  the  thne  of  meet- 
ing^ it  was  held  that  three  publications  made  within  the  three 
weeks  next  preceding  the  time  of  meeting,  was  not  a  compliance 

» Woods  V.  Monroe,  17  Mich.,  2^8. 

2  Hallcck  V.  Moss,  17  Cal.,  339 ;  Ilaynes  v.  Meeks,  10  7d,  110. 
^  Tovvnsead  ».  Tallant,  33  Cal.,  4.") ;  Corvvin  v.  Merrelt,  3  Barb.,  341 ;  Havens 
D.  Sherman,  42  Barb.,  ()36;  Gibson  ®.  Roll,  30  111.,  172. 
*  Wells  ».  Child,  12  Allen,  330. 


484  PUBLICATION    OF    NOTICES. 

with  the  statute;  as  the  first  publication  was  intended  to  be 
full  three  weeks  prior  to  the  meeting.^  But  where  "sixty 
days'  notice  "  was  required  to  be  published  of  calls  for  install- 
ments of  stock  in  a  corporation,  one  insertion,  sixty  days 
prior  to  the  day  fixed  was  held  sufiicient.'^ 

§  1133.  Mortgagee's  Sales.  —  There  are  also  sales  made  in 
pursuance  of  published  notice,  where  the  publication  is  made 
according  to  the  terms  of  a  contract  between  the  parties  inter- 
ested, as  a  mortgage  with  power  of  sale  without  judicial  fore- 
closure, or  deed  of  trust  in  the  nature  of  a  mortgage  with 
power  of  sale.  The  time  and  place  of  sale,  as  well  as  the  time 
for  which  the  notice  shall  be  published,  being  fully  provided 
for  in  the  instrument,  it  is  only  requisite  that  the  provisions 
of  the  contract  shall  be  complied  with,  in  order  to  render  the 
sale  valid  and  binding.^ 

§  1134.  Matters  Noticed  Elsewhere.  — There  are  other  matters 
which  may  be  brought  to  the  notice  of  parties,  by  publication 
in  a  newspaper,  by  which  their  rights  or  liabilities  may  be 
enlarged  or  restricted  with  reference  to  their  transactions  with 
those  giving  the  notice;  as  a  dissolution  of  partnership,  regu- 
lations by  common  carriers,  restricting  their  liabilities  as  such 
and  the  like;  but  these  notices  when  published,  must  be  satis- 
factorily brought  home  to  the  parties  to  be  affected,  by  other 
evidence  than  the  mere  fact  of  publication.  For  this  reason 
they  are  not  treated  here,  but  are  noticed  elsewhere.* 

'  In  re  North  Whitehall,  47  Penn.  St.,  156. 
"Andrews  v.  O.  &  M.  R.  R.  Co.,  14  Ind.,  169. 
'  Pratt  V.  Tiakcom,  21  Minn.,  142. 
*  See  Ante  <Jh.  IV,  Pta.,  I  and  II. 


OKIGINAL   PKOCESS.  485 


CHAPTEE  YIII. 
Pkactice  and  Pleading. 

I.  Original  Peocess. 
II.  Notice  of  Trial. 

III.  Notice  of  jMotions  akd  Other  Interlocutoby  Peoceedinqs. 

IV.  Notice  of  Appeal. 

V.  Notice  of  Taking  Depositions. 
VI.  Notice  to  Produce  Books  and  Papers. 
VII.  Service. 
VIII.  The  Return. 
IX.  Pleading. 

I.  Original  Process. 

§  1135.  General  Nature  of  Modern  Summons. 

1136.  Importance  of  due  Service. 

1137.  When  Personal  Notice  Required. 

1138.  Rule  applies  to  all  Judicial  or  quasi  Judicial  Proceedings. 

1139.  Assessment  of  Damages  to  Property. 

1140.  Decree  in  Chancery — Summary  Proceedings. 

1141.  Judgment  against  Sureties. 

1142.  Divorce  and  Alimony. 

1143.  Justice  of  Peace. 

1144.  Actions,  in  Rem. 

1145.  Annulling  Certificate  of  Purchase. 

1146.  Knowledge  will  not  Excuse  Notice. 

1147.  IMust  be  Written  or  Printed. 

1148.  ]Must  Conform  to  Statute. 

1149.  Sliould  State  Time  and  Place. 

1150.  Where  but  One  Cause  of  Action  Described. 

1151.  Scire  Facias. 

1152.  Should  Contain  the  Name  of  Defendant. 

1153.  Omission  of  Name  held  Immaterial. 

1154.  Venue. 

1155.  Immaterial  Variations  and  Omissions. 


486  PRACTICE   AND    PLEADING. 

115(5.  Requirements  of  different  States  as  to  Certainty  of  Summons. 

1157.  The  "Purpose  "  to  he  Stated. 

1158.  Infant  Defendants. 

1159.  When  Returnable. 

1160.  Substantial  and  Technical  Defects. 

1161.  Jurisdiction. 

§  1135.  General  Nature  of  Modern  Summons.  —  Whatever  be 
the  wording  or  the  technical  name  of  the  instrument,  by  which 
a  person  is  advised  of  the  pendency  of  a  civil  suit  against 
him;  whether  it  be  mandatory  in  its  terms  to  the  officer 
charged  with  its  service,  bidding  him  to  summon  the  party  to 
he  and  a2)pear,  etc.,  or  is  conched  in  language  merely  suit- 
able for  the  conveyance  of  information  to  the  defendant, 
advising  him  that  unless  he  appear,  etc.,  judgment  will  be 
taken  against  him,  it  is  still  in  effect,  a  notice,  and  nothing 
more,  though  it  may  be  styled  a  writ.  It  no  longer  serves  the 
purpose  of  the  ancient  original  writ  further  than  to  inform  tlie 
defendant  of  the  pendency  of  the  action,  and  afford  hi  in  an 
opportunity  to  appear  and  defend.  In  some  of  the  states  the 
original  process  by  which  the  court  obtains  jurisdiction  of  the 
defendant  is  no  longer  styled  a  writ  of  summons,  but  is  called 
simply  a  notice.-'  And  where  this  cliange  has  been  ado])ted, 
the  notice  is  found  to  subserve  all  the  purposes  for  which  a 
writ  will  be  found  necessary,  when  it  is  not  desired  to  place 
the  defendant  under  personal  restraint. 

§  1136.  Importance  of  Due  Service.  — This  process,  being  first 
in  order,  is  also  of  primary  importance  in  the  institution  of  a 
suit  either  at  law  or  in  eqttity;  for  its  due  service,  actually  or 
constructively,  is  necessary  to  give  the  court  jurisdiction  either 
oi  \\\e  defendayit,  in  personal  actions,  ov  oi  i\\Q  thing  m  actions 
in  rem? 

§  1137.  "When  Personal  Notice  Required.  —  Where  the  object 
of  the  action  is  to  obtain  a  judgment  against  the  defendant 

Code  of  Iowa  (1873),  §  2599,  p.  441. 
=  The  Globe,  2  Blatch.  Ct.  Ct.,  427;  Pagett«.  Curtis,  15  La.  An..  451;  Pom- 
eroy  o.  Betts,  31  Mo.,  419;  Kehler  v.  Jack.  Mant.  Co.,  55  Ga.,  639. 


ORIGINAL    PROCESS.  487 

upon  which  an  execution  may  issue  to  be  levied  generally  of 
his  goods  and  chattels,  or  of  his  property',  personal,  real,  and 
mixed,  it  is  necessary  at  common  law  that  there  should  be  a 
personal  notice,  citation,  summons,  or  subpcena,  or  that  the 
defendant  should  voluntarily  appear  to  the  action.  In  cases 
of  this  character  such  notice  or  appearance  is  indispensable 
to  the  jurisdiction  of  the  court.^ 

§  1138.  Rule  Applies  to  all  Judicial  or  Quasi  Judicial  Proceed- 
ings. —  This  is  true  of  every  proceeding  of  a  judicial  nature, 
to  whicli  there  are  two  or  more  parties,  except  where  there  are. 
statutory  provisions  authorizing  process  other  than  personal. 
All  the  parties  are  entitled  to  a  hearing  before  judgment  can 
be  legally  pronounced  against  them.  Of  this  they  could  have 
no  assurance,  if  they  were  not  notified  of  the  pendency  of 
the  proceedings  against  them.  Without  such  notice,  then,  as 
is  imparted  by  the  original  process  issuing  out  of  a  court  or 
other  judicial  tribunal,  any  judgment  rendered  against  one  or 
more  of  the  parties,  would  not  only  be  erroneous,  but  in  genei-al, 
absolutely  void? 

§  1139.  Assessment  of  Damage  to  Property.  —  So,  where  a 
commissioner  of  highways  instituted  proceedings  under  the 
provisions  of  a  statute  of  the  State  of  New  York,  for  tlie 
re-assessment  of  damages  to  the  property  of  defendant,  by 
reason  of  the  necessary  improvement  of  a  public  thorouglifare. 
it  was  held  that  the  parties  whose  proprietory  rights  were 
affected  by  the  proceeding  were  entitled  to  be  heard,  and  lience 
were  entitled  to  due  notice  of  sucli  proceeding.^ 

'  Gray  ?).  Hawes,  8  Cal.,  503;  Cooperi;.  Smith,  23  Iowa,  2G9;  Wilson  t>. 
Jolinson,  30  Texas,  499. 

^  Jiulah  ®.  Stephenson,  10  Iowa,  493;  Madden  x>.  FieUling,  19  La.  Ad., 
505;  Mitchell  «.  Gray,  18  Ind.,  123;  Klemm  «.  Dewes,  28  111.,  317;  Goudy 
v.  Hall,  .30  111.,  109;  Penobscot  R.  R.  Co.  d.  Weeks,  52  Me.,  456;  Bruce  v. 
Cloutman,  45  N.  H.,  37 ;  Oswald  •«.  Grey,  29  Eng.  L.  &.  Eq.,  85 ;  Peters  v. 
Newkirk,  6  Cow.,  103;  Copeland  v.  Directors  of  Mining  Co.,  33  Midi.,  2; 
Mitchell  «  Runkle,  25  Tex.,  Supp.,  132;  Simpson  v.  Knight,  12  Pla.,  144; 
Falconer  r.  Montgomery,  4  Dull.,  232;  Crowell  d.  Davis,  12  Met.,  293;  Ballitt 
V  Mnsgrave,  3  Carr.  ct  Kir.,  31 ;  Craig  v.  Hawkins,  Hardin  (Ify.),  4fi;Cobb 
v.  Wood,  32  Me  ,  455. 

=  People  V.  Tiillmiin,  30  i^arb  ,  222 ;  Cox  r.  Mathews,  17  Ind.,  307.    A  pof ire- 


488  PRACTICE    AND    PLEADING. 

§1140.  Decree  in  Chancery — Summary  Pi'oceedings.  —  So,  also, 
lias  it  been  uniformly  held  that  a  decree  in  chancery  could  not 
be  rendered  against  a  party  defendant  who  had  not  been  cited 
or  notified  to  appear.^  And  whenever  a  person's  rights  are  to 
be  afi'ected  by  a  summary  proceeding  or  motion  in  court,  he 
must  be  notified,  in  order  tliat  he  may  appear  and  protect  his 
interests.^ 

§1141.  Judgment  against  Sureties.  —  So  where  it  was  sought  to 
obtain  judgment  against  the  sureties  on  a  forthcoming  bond, 
it  was  held  that,  in  tlie  absence  of  notice  to  such  sureties,  any 
judgment  obtained  against  them  would  be  an  absolute  nullity, 
for  the  want  of  jurisdiction,  legally  obtained,  of  the  parties 
against  whom  the  judgment  was  rendered.^ 

§  1142.  Divorce  and  Alimony.  — It  has  also  been  held  that,  in 
an  action  for  divorce,  or  for  alimony  incident  to  a  decree  of 
divorce,  a  personal  judgment  for  such  alimony  could  not  be 
had  against  a  citizen  of  another  state  without  first  obtaining 
jurisdiction  of  such  non-resident  party  by  the  service  of  process 
upon  him  personally,  or  according  to  a  mode  recognized  as  the 
legal  equivalent  of  such  personal  service,  within  the  territorial 
jurisdiction  of  the  court  rendering  the  judgment.  Construc- 
tive notice,  by  publication  of  summons,  will  not  be  suflicient, 
even  where  the  decree  of  divorce  itself  may  be  rendered  upon 
such  substituted  process.* 

§  1143.  Ju.sticeof  Peace. —  Nothing  need  be  said  in  support 
of  a  rule  so  salutary.  Every  variation  or  modification  of  its 
requirements  needs  justification  upon  the  strongest  grounds  of 
necessity.  Its  application  must  be  alike  to  all  proceedings  of 
a  judicial  character,  whether  before  courts  of  oreneral  or  lim- 


man  against  wliom  charges  are  prefen-ed  by  any  one  except  a  commissioner 
is  entitled  to  notice.    McDermott  b.  Board  of  Police,  25  Barb.,  635. 

'Morris  o.  Bailey,  15  La.  An.,  2;  Elee  b.  Wait,  28  111.,  70. 

5  George  v.  Midviougli,  (52  Mo.,  549. 

'Roach  V.  Barnes,  33  Mo.,  319.  But  sureties  are  not  always  entitled  to 
notice  before  judgment  may  be  entered  against  them.  Farmer  v.  Stewart,  3 
N.  H.,  97. 

4  Beard  v.  Beard,  21  Ind.,  32L. 


ORIGINAL    PROCESS.  489 

ited  jurisdiction.  It  is  equally  necessary  to  an  impartial 
administration  of  justice  in  courts  of  record,  and  in  the  trial 
of  causes  before  justices  of  the  peace. ^ 

§1144.  Actions  in  Rem.  —  The  necessity  of  personal  notice 
to  the  defendant  is  not  confined  to  cases  where  a  personal 
judgment  is  sought.  Where  the  property  of  defendant  has 
been  attached,  except  in  those  cases  where  the  statute  pro- 
vides for  notice  by  publication,  the  defendant  is  entitled  to 
personal  notice,  not  only  of  the  pendency  of  the  suit,  but  of 
the  attachment  of  his  property.  The  object  of  the  notice  is 
to  enable  him  to  appear  and  plead,  as  well  to  the  affidavit  of 
attachment  as  to  the  merits  of  the  claim  or  demand,  and  judg- 
ment should  not  be  given  against  him  without  satisfactory 
proof  of  such  notice.^ 

§  1145.  Annulling  Certificate  of  Purchase. —  So,  in  a  suit  under 
a  statute  of  the  State  of  California  for  the  pnrpose  of  annulling 
a  certificate  of  purchase  of  land  sold  by  the  state  upon  a 
credit,  and  the  purchaser  had  failed  to  meet  the  deferred 
payments,  though  the  object  was  not  to  obtain  a  personal 
judgment  against  the  delinquent  purchaser,  still,  as  the  statute 
had  provided  no  substituted  service,  in  an  action  of  that  sort, 
it  was  held  that  personal  process  was  necessary  to  give  the 
defendant  his  day  in  court.^ 

§1146.  Knowledge  will  not  Excuse  Notice.  —  The  mere  fact, 
however,  that  the  defendant  has  been  personally  notified  of  a 
suit  brought  against  him,  will  not  always  beasufficient  service 
of  process  upon  which  to  predicate  a  judgment.  Mere  cogniz- 
ance of  the  existence  of  the  action  is  not  a  notice  in  the  legal 
sense,  by  Mdiich  a  party  may  be  subjected  to  the  jurisdiction  of 
a  court  so  as  to  give  validity  to  a  judgment  rendered  against 
him.* 

'  Case?;.  Hannahs,  2  Ivans.,  490;  .Johnson  v.  Baker,  38  111.,  98;  Mitchell  v. 
Riinkle,  25  Tex.  (Supp.),  133;  People  v.  Bacou,  18  Mich.,  247;  Alexander 
V.  Quigley's  Exr's,  2  Duv.  (Ky.),  399. 

'  Simp.son  v  Knight,  12  Fla.,  144. 

"  People  V.  Ilerniao,  45  Cal  ,  G89. 

*  Peabody  v.  Phelps,  9  Cal.,  213. 


490  PRACTICE    AND    PLEADING. 

§  1147.  Must  be  AVritten  or  Printed.  — Unless  the  formal  requi- 
sites of  the  original  process  are  expressly  waived  by  the 
defendant,  snch  process  is  universally  required  to  be  written 
or  priyited.  Mere  verbal  notification  has  never  been  held 
sufficient  to  require  the  appearance  of  the  party  summoned  to 
answer  either  civilly  or  criminally.^ 

§  1148.  Must  Conform  to  Statute.  —  As  to  what  the  written  or 
printed  notice  should  contain,  it  may  be  stated  generally,  as 
such  matters  are  regulated  by  statute,  that  whether  the  j^rocess 
be  for  actual,  personal  service,  or  for  constructive  service  by 
publication,  it  must  conform  substantially  to  the  requireriients 
of  the  statute  by  which  it  is  authorized.'- 

§  1149.  Should  State  Time  and  Place.  —  It  is  universally  requi- 
site, however,  that  the  original  process  should  state  the  time 
and  place  of  trial  with  substantial  correctness,  and  with  reason- 
able certainty.  It  was  accordingly  held  that  where  judgment 
was  rendered  upon  an  original  notice,  which  did  not  state  the 
time  and  place,  when  and  where  defendant  was  required 
to  appear  and  defend,  it  was  not  lunding  upon  such  defendant 
and  could  be  successfully  attacked  in  a  collateral  proceeding.' 

§  1150.  Where  but  One  Cause  of  Action  Described.  —  It  has  also 
been  held  where  a  summons  was  issued  and  served  upon  a 
party  requiring  him  to  answer  to  fourteen  different  suits,  upon  as 
many  promissory  notes,  and  the  process  described  with  reason- 
able certainty  one  of  such  notes,  and  mentioned  the  others  as 
''  tliirteen  similar  notes  "  that  the  process  was  good  only  as  to 
the  one  note  described,  and  that  judgment  on  the  thirteen 
others  would  be  set  aside  on  a  motion  alleging  the  want  of  a 
legal  summons.'* 

§  1151.  Scire  Facias. —  A  judgment  on  a  scire  facias  served 
without  the  citation  and  copy  of  the  petition  required  by 
statute,   on  the   administrator  of  a   deceased   defendant,  who 

'  1  Tidd  Prac,  109  et  sfq  ;  Whillaker  N.  Y.  Prac,  93. 
^  IvMrr  V.  Karr,  10  N.  J.  Eq.,  427. 
^Kitsniiller  v.  Kitchen,  24  Iowa,  V3.  % 

•»  Williauison  v.  Wardlaw,  40  Ga.,  702. 


ORIGINAL    I'llOCESS.  491 

was  not  served  with  prucess  in  his  lifetime,  was  held  to  be 
eiToneous.^ 

§  1152.  Should  Contain  the  Name  of  Defeiidaut.  —  A  farther  essen- 
tial requisite  to  a  good  and  sufficient  summons,  is  that  it  should 
contain  the  name  of  the  party  served.  Accordingly,  it  was 
held  where  a  summons  against  several  joint  defendants  did  not 
contain  the  names  of  all  those  served,  it  was  fatally  defective.^ 

§  1153.  Omission  of  Name  Held  Immaterial. — On  the  other  hand 
it  was  held  in  another  case  under  a  different  statute,  that  the 
omission  to  insert  in  a  summons,  served  upon  one  of  several 
defendants,  the  name  of  the  co-defendants  first  served,  except 
as  the  same  was  by  the  clerk  endorsed  on  the  process,  would 
not  render  such  summons  void,  nor  even  furnish  grounds  for 
a  motion  to  set  the  same  aside  at  the  instance  of  the  defendant 
last  served.'  This  was  under  a  statute  authorizing  the  issuance 
of  "-'a  branch  summons,"  to  be  served  without  the  county,  in 
which  the  farm  was  located,  and  within  which  service  was  had 
upon  the  co-defendant  first  served.  The  clerk  was  required  to 
indorse  the  branch  summons  so  as  to  show  its  connection  with 
the  original,  and  in  doing  so,  in  this  instance  included  in  his 
indorsement  the  names  of  the  co-defendants. 

§  1154.  Venue.  —  And  though  it  is  important  that  the  venue 
sliould  be  correctly  stated  in  the  process,  to  the  end  that  the 
party  served  may  know  before  what  tribunal  he  is  called  to 
make  his  defense,  still  if  the  proper  county  is  mentioned  in 
the  margin,  the  insertion  of  a  different  county  in  the  body  of 
the  summons  would  not  render  the  same  void.  Such  a  defect 
may  be  cured  by  amendment.'* 

J  Lyendecker  v.  Martin,  38  Tex.,  287. 

"^  Bendy  v.  Boyce,  37  Tex.,  443 ;  Anderson  v.  Brown,  16  Tex.,  554;  Battle 
V.  Eddy,  31  Tex.,  368;  Portwood  v.  Wilburn,  33  Tex.,  713.  Mere  error  in 
name,  however,  will  not  generally  affect  the  service.  If  served  on  the 
proper  party,  the  summons  will  ordinarily  be  sufficient,  and  if  a  name  be 
omitted  it  may  be  supplied  after  service.  See  Part  IV,  Service,  g  1:^33 
et  seq. 

°  Lewis  V.  Grace,  44  Ala.,  307. 

*  Piclfe  V.  Valentine,  45  Ala.,  286. 


492  PRACTICE    AND    PLEADING. 

§1155.  Immaterial  Variations  and  Omissions.  —  So  immaterial 
omissions  and  slio^ht  variations  will  not  be  reo^arded  as  of 
sufficient  importance  to  affect  the  judgment.  As  wlierc  the 
seal  of  the  court,  or  a  copy  thereof,  was  omitted  from  the 
copy  with  which  the  defendant  was  served,  or  where  the  court, 
which  was  legally  styled  the  ''  court  of  common  pleas,"  was 
carelessly  and  erroneously  designated  in  the  process  as  the 
'•  common  pleas  court,"  these  trifling  departures  from  literal 
accuracy  were  held  to  be  immaterial,  for  the  manifest  reason 
tliat  they  could  not  possibly  mislead  the  defendant.^ 

§  1156.  Requirements  of  Different  States  as  to  Certainty  of  Sum- 
mons. —  There  is  not  the  same  degree  of  particularity  required 
by  the  statutes  of  tlie  different  states,  in  the  description  of  the 
action  to  which  the  defendant  is  called  upon  to  answer,  or  in 
stating  in  the  process  tlie  cause  or  causes  of  action.  In  Rhode 
Island  the  summons  is  simply  required  to  state  that  defendant 

is  to  answer,  "in  an  action  of  ,  as  by  declaration  to 

be  filed  in  court  will  be  fully  set  forth."  The  statute  was  held 
to  be  sufficiently  complied  with  where  the  blank  in  the  sum- 
mons was  filed  by — "an  action  on  the  case  for  trover  and 
conversion  of  certain  personal  property,"  without  specifying 
particularly  the  chattels  alleged  to  have  been  converted.^ 

§  1157.  Tlie  "  Purpose  "to  be  Stated.  —  So  where  the  statute 
required  all  writs  of  summons  in  civil  actions  to  state  the 
jmrpose  for  which  the  defendant  was  summoned,  it  was  held 
that  it  was  not  necessary  to  describe  the  nature  of  the  suit  any 
fui'ther  than  to  state  when  and  where  it  was  to  be  answered, 
and  the  name  of  the  plaintiff.  The  construction  placed  upon 
the  statutory  requirement  to  "  state  the  purpose  for  which  the 
]mi-ty  is  summoned,"  was  that  it  was  intended  to  give  notice 
to  the  defendant  that  he  was  not  summoned  to  appear  as  a 
witness  or  for  any  other  purpose  than  to  defend  himself  in  a 
suit  of  the  plaintiff  who  was  named  in  the  summons.  There- 
fore, it  was  held  to  be  a  sufficient  compliance  with  this  ju'ovis- 

'  Hughes  V.  Osborn,  42  Ind.,  430. 
'  Slocomb  V  Powers,  10  R.  I.,  255. 


OKIGINAL    PROCESS.  493 

ion  of  the  statute  when  the  defendant  was  summoned  to 
appear  "  to  answer  an  action  at  the  suit  of "  the  plaintiff — 
naming  him. ^ 

§  1158.  Infant  Defendants.  —  Greater  strictness  is  generally 
required  in  the  observance  of  the  rules  of  practice  in  cases 
involving  the  rights  of  infant  parties.  So,  where  the  infant 
distributees  under  a  will  were  made  defendants  in  a  suit  for 
distribution,  but  were  not  served  with  process,  either  actually 
or  constructively,  they  were  held  to  be  not  bound  by  the  judg- 
ment, notwithstanding  they  were  plaintiffs  in  another  suit,  in 
which  they  appeared  without  next  friend  or  guardian,  which 
suit  was  consolidated  with  the  one  in  which  they  load  been 
made  defendants.^ 

§  1159.  When  Returnable.  —  Another  feature  in  which  a  strict 
compliance  with  statutory  requirements  is  necessary  to  uphold 
the  process,  is  in  making  it  returnable  at  the  proper  term  of 
court.  At  common  law,  and  under  the  statutes  of  some  of 
the  states,  the  original  process  should  be  made  returnable 
at  the  term  of  court  next  succeeding  the  date  of  service. 
Regarding  the  issuing  of  process  as  the  commencement  of 
the  action,  and  following  the  rule  that  every  action  is  to  stand 
for  trial  at  the  first  term  after  it  is  commenced,  there  could  not 
be  the  intervention  of  a  term  of  court  between  the  teste  and 
return  of  the  writ.  Process  made  returnable  on  a  day  beyond 
the  next  succeeding  term,  except  whei'e  the  common  law  rule 
is  abrogated  by  statute,  would  not  only  be  held  irregulai-,  but 
absolutely  void,  and  any  judgment  predicated  upon  such  pro- 
cess would  be  a  nullity.  ^ 

§  1160.  Substantial  and  Technical  Defects.  —  It  has  been  asserted 
by  some  of  the  authorities  that  not  all  the  requisites  to  per- 
fect process  are  indispensable  to  the  support  of  the  jurlsdio- 

•  Ritter  v.  Offutt,  40  Md  ,  207. 

«  Bush  V.  Bush,  2  Duvall  (Ky.),  269. 

8  Shirley  v.  Hagar,  3  Blackf.,  225 ;  Crocker  v.  Dunkin,  6  Blackf.,  535 ;  Carey 
V.  Butler,  11  Ind.,  391;  Will  v.  Whitney,  15  Ld,  194;  Rigsbee  v.  Bowler,  17 
/rf.,  1G7;  Atkinson  I).  Taylor,  2  Wilson,  K.B.,  117;  Parsons  v.  Loyd,  8  Id., 
341 ;  Burk  v.  Barnard,  4  Johns.,  309  ;  Briggs  v.  Sneghau,  45  Ind.,  14. 


40i  PRACTICE    AND    PLEADING. 

tion  thereby  sought  to  be  acquired  over  the  person  of  the 
defendant.  The  omission  of  some  things  regarded  as  neces- 
sary to  the  protection  of  a  judgment  against  a  direct  proceed- 
ing to  set  the  same  aside,  have  been  lield  not  to  justify  a 
collateral  attack  upon  a  judgment  once  obtained.^  Such  defects 
are  those  which  relate  rather  to  the  Tegularity  of  the  process 
by  which  jurisdiction  is  obtained,  than  to  the  question  whether 
any  jyi^ocess  has  been  issued  and  serv^ed.  It  is  the  difference 
between  defective  process  and  no  process.  "Where  the  process 
is  merely  defective,  it  is  held  that  it  may  be  sufficient  to  give 
the  court  jurisdiction  of  the  person  of  the  defendant,  when  it 
may  t\'y<  all  the  issues  between  the  parties,  and  may  determine 
the  question  of  the  sufficiency  of  the  process  upon  which  its 
jurisdiction  depends,  as  one  of  those  issues.  Should  the  case 
go  to  judgment,  it  will  be  presumed  that  the  court  has  decided 
the  process  to  be  sufficient,  and  its  judgment  can  onl}^  be 
affected  by  a  direct  proceeding  for  the  purpose  of  setting  the 
same  aside,  or  by  seeking  the  reversal  thereof  in  a  court  of 
appellate  jurisdiction.^ 

§  1161.  Jurisdiction.  —  "Jurisdiction"  it  has  been  said,  "  con- 
sists not  in  the  declaration  of  right,  but  in  the  right  to  declare 
it,  and  in  declaring  it  rightly;  and  therefore  presupposes  that 
proper  efforts  have  been  made  to  bring  those  parties  into  court 
who  are  to  be  affected  by  its  exercise.''^  Just  what  are  proper 
efforts  to  bring  those  parties  into  court  who  are  to  be  affected 
by  the  exercise  of  its  right  to  declare,  is  beset  with  some  diffi- 
culty, in  view  of  the  distinction  between  mere  irregularities, 
and  fatal  defects  in  the  process.     Though  process  regarded  as 


1  Pursley  v.  Hays,  22  Iowa,  11 ;  Westoby  v.  Day,  22  Eng.  L.  &  Eq.,  261. 
But  see  Pollard  v.  Wegener,  13  Wis.,  569. 

'^Sm.  Lead.  Cas.,  607,  700;  Borden  v.  State,  11  Ark.,  519;  Sheldon  ». 
Wright,  5  N.  Y.,  497;  Wright  v.  Marsh,  2  G.  Greene,  109;  Ewiug  ».  Higby, 
6-7  Ohio,  343;  Paine  v.  Mooreland,  15  Ohio,  435;  Morrow  n.  Weed,  4  Iowa, 
77;  Shawhan  v.  Laffen,  24  Iowa,  217;  Myers  v.  Orerton,  4  E.  D.  Smith 
(N.  Y.),  428. 

^Ex  parte  Kinning,  4  C.  B.,  507;  Kinning  v  Buchanan,  8  Id,  271 ;  1  Sm. 
Lead.  Cas.,  839. 


OEIGINAL    PROCESS.  495 

defective,  and  liable  to  be  quashed,  has  been  declared  sufficient 
to  protect  the  judgment  from  collateral  attack,^  still  it  cannot 
be  maintained  that  a  mere  attempt  or  pretense  at  the  issuing 
and  service  of  process  would  be  sufficient  to  give  the  court 
even  the  temporary  jurisdiction  necessary  to  pass  upon  the 
sufficiency  of  the  process.  "Were  the  rule  otherwise,  there 
could  be  no  such  thing  as  a  void  judgment,  fair  on  its  face. 
There  must  be  a  point  of  departure  from  the  legal  require- 
ments in  this  respect  where  the  pretended  process  would  be 
held  no  process  at  all;  otherwise  the  more  complete  the  fraud 
in  making  a  show  of  service  of  process,  the  better  would  be  the 
prospect  of  success.  Many  of  the  defects  which  utterly  vitiate 
the  process,  as  well  as  those  characterized  in  some  of  the  cases 
as  mere  irregularities,  occur  with  respect  to  the  service  and 
■return  of  process,  and  will  be  illustrated  by  cases  cited  in  sub- 
sequent parts  of  this  chapter  devoted  to  the  return.  From  a 
careful  consideration  of  these  cases  as  well  as  those  already  cited, 
conflicting  as  some  of  them  will  be  found,  wo,  may  safely 
deduce  the  rule  that  where  a  departure  from  the  requirements 
of  the  law  in  regard  to  the  issuing  or  service  of  process,  is 
in  any  substantial  matter  affecting  the  rights  of  the  defendant, 
the  process  will  be  a  nullity,  and  the  judgment  may  be  collat- 
erally attacked.  What  are  matters  of  substance  and  what 
matters  of  mere  form,  can  best  be  shown  by  further  reference 
to  the  authorities.^ 

'  Morrow  v.  Wceil,  4  Iowa,  77;  Sbr.whan  v.  Laffon,  Supra;  Fagg  v.  Clem- 
ents, 16  Cal.,  3Sn. 

^  See  Post,  VIII.  and  cases  cited.  Where  a  party  defendant  upon  whom 
process  has  been  defectively  served,  or  who  has  been  served  with  process 
irregularly  issued,  or  even  where  he  has  been  served  with  no  process  at  all, 
appears  to  the  action  and  answers,  demurrs  generally,  asks  or  consents  to  a 
continuance,  his  appearance  will  amount  to  a  complete  waiver  of  process. 
Briggs  V.  Sneghan,  45  Ind.,  14;  Peters  v.  St.  Louis,  »S:c.,  K  R.  Co.,  59  Mo., 
406;  Reading  v.  Ford,  1  Bibb,  3:^,8;  Ryan  v.  Driscoll,  83  111.,  415;  Biles  v. 
Stanton,  6!)  111.,  51;  Ilolman  ».  Eiterman,  83  111.,  92;  Rimdall  v.  Falkner,  41 
Cal.,  242.  But  a  special  appearance  for  the  purpose  of  objecting  to  irregu- 
larities in,  or  failure  of,  process  cannot  be  construed  into  a  waiver  of  the 
irregularities  cfmiplained  of.  Mul'en  «.  Higgins,  13  Abb.  Pr.  N.  S.,  297; 
Jones  c.  Jiyrd,  74  111.,  115. 


19G  PKACTICE    AND    PLEADING. 


II.  Notice  of  Tkial. 

§  1162.  Required  by  Statute. 

1163.  Example  from  New  York  Code. 

1164.  English  Rule. 

1165.  Should  not  be  Vf^gue  or  Misleading. 

1166.  Should  Specify  the  Particular  Suit. 

1167.  May  be  Noticed  for  Trial  by  Either  Party. 

1168.  Sufficiently  Explicit  as  to  Term. 

1109.  Party  Notified  may  rely  on  Term  Designated. 

1170.  Served  before  Issue  Joined. 

1171.  Does  not  Depend  upon  Discretion  of  Court. 
1173.  Service  upon  Party  or  Attorney. 

1173.  Eftect  of  Continuance. 

1174.  Effect  of  Amendment. 

1175.  Notice  Waived. 

1176.  Where  Judgment  Attacked  for  Want  of  Notice. 

1177.  Must  be  for  Substantial  Defects. 

1178.  Statement  of  Wrong  Day. 

1179.  Failure  to  Place  on  Calendar. 

1180.  Wisconsin  Code. 

1181.  Time  under  English  Rule. 

§  1102.  Required  by  Statute.  —  The  notice  treated  of  in  this 
place  is,  in  general,  the  creature  of  statute  law,  and  is  some- 
times prescribed  and  regulated  in  its  details  by  the  rules  of 
court,  for  the  reason  that  the  statute  does  not  prescribe  with 
sufficient  definiteness  its  form  and  contents,  nor  its  manner 
and  mode  of  service.  In  many  of  those  states  where  the  code 
has  been  adopted,  and  the  issues  between  parties  are  made  by 
pleadings  filed  in  court,  within  certain  prescribed  periods, 
notice  of  trial  is  not  required  to  be  served  upon  the  party  or 
his  attorney.  Where  the  answer  is  filed  on  or  before  a  certain 
day  of  the  return  term,  and  the  plaintiff'  is  required  either  to 
reply  or  demur  on  or  before  a  certain  day  after  the  filing  of 
the  answer,  the  court  will  take  notice  when  an  issue,  either  of 


NOTICE    OF    TRIAL.  497 

law  or  fact,  it^  readied.  When  the  pleadings,  with  the  excep- 
tion of  the  first,  are  filed  in  term  time,  the  parties  are  sup- 
posed to  be  fully  advised  of  the  progress  of  the  written  alter- 
cations they  are  conducting  through  their  attorneys,  and  the 
trial  "calendar"  or  "•  docket  "  will  notify  them  when  the  cause 
is  set  down  for  hearing. 

§  1163.  Example  from  New  York  Code.  —  Tlie  sj^stern  of  prac- 
tice, whicli  includes  this  notice,  is  therefore  peculiar  to  certain 
states  of  the  Union,^  and  to  Great  Britain.  As  an  example  of 
the  provisions  of  the  code  of  procedui-e  in  this  respect,  we 
shall  incorporate  a  section  whicli  embraces  enough  to  show 
not  only  the  object  of  such  a  notice,  but  will  give  a  general 
idea  of  its  principal  requisites  :  "  At  any  time  after  the  join- 
der of  issue,  and  at  least  fourteen  days  before  the  commence- 
ment of  the  term,  eithei"  party  may  serve  a  notice  of  trial. 
The  party  serving  the  notice  must  file  with  the  clerk  a  note  of 
issue,  stating  the  title  of  the  action,  the  names  of  the  attor- 
neys, the  time  when  the  last  pleading  was  served,  the  nature 
of  the  issue,  whether  of  fact  or  law  ;  and,  if  an  issue  of  fact, 
whether  it  is  triable  by  a  jury,  or  by  the  court  without  a  jury. 
The  note  of  issue  must  be  filed  at  least  eight  days  before  the 
commencement  of  the  terra  ;  unless  a  different  time  is  pre- 
scribed in  the  general  rules  of  practice.  The  clerk  must  there- 
upon enter  the  cause  upon  the  calendar,  according  to  the  date 
of  the  issue.  In  the  city  and  county  of  New  York,  wlien  a 
party  has  served  a  notice  of  trial,  and  filed  a  note  of  issue,  for 
a  term  at  which  the  cause  is  not  tried,  it  is  not  necessary  for 
him  to  serve  a  new  note  of  issue  for  a  succeeding  term  ;  and 
the  action  must  remain  on  the  calendar  until  it  is  disposed  of"^ 

§  1164.  En.!?lish  Rule.  —  The  English  rule  is  that,  previously 
to  the  sittings  or  assizes  at  whicli  the  cause  is  to  be  tried,  the 
plaintiff  should  give  due  notice  of  trial.''  The  manner  and 
mode  of  giving  such  notice,  as  well  as  the   time  between   the 

'  New  York,  Wisconsin,  New  Jersey,  Minneiiolu,  and  some  otliers. 
'Throop's  Code  <N.  Y.),  §  977. 
•Tidd's  Prac,  7.')3. 

32 


498  I'KAOTIOK    AND    PLEADING. 

service  of  the  notice  and  the  sittings,  are  regulated,  to  a  con- 
sidei'able  extent,  by  the  rules  of  the  court  where  the  cause  is 
triable.  These  rules  differ,  in  some  minor  particulars,  in  the 
courts  of  Queen's  bench.  Exchequer,  and  Common  Pleas, 
respective!}',  but  generally  receive  about  the  same  liberal  con- 
struction in  either  of  these  tribunals.  The  tendency  of  the 
decisions  seems  to  be  to  render  the  notice  of  trial  subservient 
to  the  purpose  for  which  it  was  designed,  though  in  doing  so 
the  court  may  tolerate  a  departure  from  technical  accuracy.' 

§  1165.  Should  iiotbe  Vagne  or  Misleading. —  In  the  jS'ew  York 
code,  the  contents  of  the  "  note  of  issue,"  to  be  filed  with  the 
clerk,  are  prescribed  with  sufficient  definiteness,  while  the 
)iotice  to  be  served  upon  the  opposite  party  or  his  attorney  is, 
l)y  the  section  quoted^  simplj^  required  to  be  served  at  least 
fourteen  days  before  the  commencement  of  the  term,  and  as  to 
what  it  shall  contain,  is  left  to  the  discretion  of  the  party  giv- 
ing it.  But  enough  is  intended,  by  its  designation  as  a  notice 
of  trial,  to  indicate  that  it  should  be  sufficiently  explicit  to 
convey  to  the  party  notified  definite  information  of  the  fact 
that  the  cause  is  to  be  entered  upon  the  calendar  for  trial.  The 
absence  of  any  statutory  requirements  as  to  the  statements  to 
be  contained  in  the  notice,  as  well  as  the  circumstances  under 
which  it  is  given,  would  not  seem  to  impose  the  duty  of  obsei-v- 
ing  technical  accuracy  in  its  statements  ;  but  still,  it  should 
not  be  so  vague  or  general  as  to  mislead  the  opposite  party  or 
his  attorney. 

§1166.  Should  Specify  the  Particular  Suit. — So,  whei'e  two 
actions,  only  one  of  which  is  noticed  for  trial,  are  depending 
l)etween  the  same  parties,  and  the  same  attorneys  are  employe<l 
to  prosecute  and  defend,  the  notice  sliould  specify  the  particu- 
lar action  intended  by  the  giver  of  the  notice,  as  the  one  to  lie 
tried.  Otherwise  the  notice  may  be  considered  too  indefinite, 
and  consequently  insufficient  to  meet  the  requirements  of  the 
statute.'^     So,   also,  it   has    been  held,   where  a  plaintitl"  who 

'  Tidd's  Pnu;,,  751,  el  »eq.,  with    iiscs  oiled  lu  notes. 
*Lisher  v.  Parmelee,  1  Wi'nd.,  22. 


NOTICE    OF    TRIAL.  499 

notices  a  cause  for  trial  intends  to  move  for  an  assessment  of 
damages  on  default,  that  such  intention  should  be  expressed  in 
the  notice.^ 

§1167.  May  be  Noticed  for  Trial  by  Either  Party.  —  As  the 
case  maj  be  noticed  for  trial  by  either  party,  and  may  be  at 
issue  on  a  set-off,  counter-claim,  or  cross-demand,  by  which 
the  defendant  asks  affirmative  relief,  should  the  defendant,  in 
such  a  case,  notice  the  cause  for  trial,  it  has  been  thought  that 
the  notice  should  express  the  intention  to  demand  the  relief 
prayed  in  his  answer.^ 

§1168.  Sufficiently  Explicit  as  to  Term.  —  JN^otwithstanding, 
the  notice  should  be  sufficiently  explicit  to  direct  the  party's 
attention  to  the  term  at  which  the  cause  would  be  for  trial, 
still  it  has  been  held,  where  the  notice  was  without  date,  and, 
after  mentioning  the  court  in  which  the  cause  was  pending, 
informed  the  party  notified  that  such  cause  would  "  be  brought 
on  for  hearing  at  the  next  term  of  said  court,"  that  such 
notice  was  not  inoperative  on  account  of  the  absence  of  the 
date,  from  wiiich  it  might  have  been  gathered  what  term  was 
meant  by  "  next  term."'^ 

§1169.  Party  Notified  may  rely  on  Term  Designated. — But 
when  the  term  has  been  designated  the  party  notified  has  a 
right  to  rely  upon  the  statements  contained  in  the  notice. 
And  if  he  should  not  find  the  cause  upon  the  calendar  for  the 
term  for  which  he  has  received  notice  of  trial,  he  is  not  bound 
to  examine  for  each  successive  term  thereafter,  in  order  to 
learn  whether  the  cause  is  in  a  condition  to  be  called  up  for 
trial." 

§  1170.  Served  before  Issue  Joined.  — The  notice  should  prob- 
ably be  served  in  every  instance,  as  is  provided  in  the  New 
York  Code  of  Procedure,^  cifter  issue  joined,  and  not  he/ore. 
J3ut  this  has  reference  only  to  the  issue  to  be  tried.     So,  where 

»Voorli.  Code  (18<)4),  459. 

« Ibid. 

'Brushaban  v.  Stigemaan,  32  Mich.,  199. 

*  Culver  V.  Felt,  4  Rob.  N.  Y.,  681. 

''Supra. 


500  I'RACTIOE    AND    PLEADING. 

there  were  two  counts  in  a  declaration,  to  the  second  of  whicli 
there  were  several  pleas  and  to  the  fourth  plea  a  special  repli- 
cation upon  which  issue  was  not  joined  when  the  notice  of 
trial  was  served  b}'  plaintiff,  the  declaration  was  amended  by 
striking:  out  such  second  count.  It  was  held  tliat  the  notice  of 
trial  was  effectual  as  to  the  first  count,  and  defendant  declining 
to  appear  further,  there  was  a  verdict  and  judgment  fur 
plaintiff.^  It  has  been  held,  however,  in  that  state,  that  the 
plaintiff,  on  serving  a  rei^lication,  may  at  the  same  time 
deliver  a  notice  of  trial ;  but  the  proceeding  is  subject  to  defeat 
or  modification,  by  the  subsequent  delivery  of  a  demurrer  by 
defendant.  And  should  there  be  issues  of  fact  joined  on  some 
of  the  pleas,  and  plaintiff  does  not  join  in  demurrer,  but  takes 
a  verdict,  he  holds  the  same  dependent  upon  the  event  of  the 
demurrer.-  It  has  also  been  held  that  notice  of  hearing  can- 
not properly  be  served  until  after  the  return  day  in  the  writ.^ 

§1171.  Does  not  Dei)en(l  upon  Discretion  of  Court. — Where 
defendant  has  appeared  he  is  entitled  to  notice  of  trial.  His 
right  to  such  notice  does  not  depend  in  any  degree  upon  the 
discretion  of  the  court.  Whatever  may  be  the  circumstances 
of  the  case,  the  court  cannot  dispense  with  the  service  of  such 
notice  and  render  a  judgment  against  defendant  which  nuty 
not  be  set  aside.^ 

§  1172,  Ser\ice  npon  Party  or  Attorney.  —  But  the  service  may 
be  either  upon  the  party  or  his  attorne}^,  except  where  the 
statute  or  the  rules  of  court  expressly  provide  that  a  prefer- 
ence shall  be  given  to  service  upon  one  or  the  other.'  The 
manner  and  mode  of  service  is  much  the  same  as  that  of 
serving  other  notices  in  the  course  of  practice.  In  one  case 
where  the  service  was  by  leaving  a  copy  of  the  notice  at  the 
office  of  the  plaintiff's  attorney  of  record,  who  was  absent 

'  Miller  v.  Stocking,  22  Wend.,  623. 
•-'  Beresford  v.  Geddes,  Law  Rep.,  2  C.  P.,  285. 
"  Miles  V.  Gofflnet,  16  Mich.,  2S0. 

'Tracy  v.  Steam  Faucet  Manuf.  Co.,  1  E.  D.  Smith  (N.  Y.),  349;  Tidd's 
Prac,  753. 
'  lUd. 


NOTICE    BY    TRIAL.  501 

from  the  state,  and  also  by  personal  service  upon  the  plaintiff, 
the  sufficiency  of  the  service  was  questioned,  but  was  sustained 
by  the  court,  upon  the  ground  that,  the  absent  attorney  still 
kept  an  office  within  the  state,  and  if  he  had  withdrawn  from 
the  case  and  another  had  not  been  retained  the  party  might 
be  personally  served.^ 

§  1173.  Effect  of  C'ontimiance.  —  When  from  any  cause  the 
case  is  not  tried  at  the  term  for  which  the  notice  is  given,  not 
only  is  it  unnecessar}-,  as  provided  by  the  ISTew  York  code,'^  to 
file  a  new  note  of  issue,  but  under  similar  code  provisions,  it 
has  been  held  that  the  party  who  first  noticed  the  case  is  not 
required  to  give  a  new  notice  of  trial.^ 

§  1174.  Effect  of  Amciiilnient.  —  So  it  has  been  held  where  a 
cause  was  regularly  noticed  for  trial  and  placed  upon  the  cal- 
endar, that  an  amendment  of  the  pleadings  would  not  neces- 
sitate a  new  notice,^ 

§  1175.  Notice  Waived.  —  An  irregularity  in  a  notice  of  trial, 
or  even  a  failure  to  give  any  notice  at  all,  may  only  be  taken 
advantage  of  before  trial,  for  the  obvious  reason  that  by  pro- 
ceeding to  trial  without  objection  the  party  waives  notice.' 

§  1176.  Where  .Tndginent  Attacked  for  want  of  Notice.  —  Where 
there  is  an  entire  absence  of  notice  of  trial,  or  even  where 
such  notice  is  insufficient  or  irregular  in  any  material  respect, 
the  judgment  obtained  in  such  cause  may  be  set  aside,  by  a 
direct  proceeding  for  that  purpose.^ 

§  1177.  Must  be  for  Substantial  Defects.  —  But  in  passing  upon 
the  sufficiency  of  a  notice  of  trial,  the  court  will  not  set  aside 
the  judgment  for  mere  verbal  inaccuracies  which  may  or  may 
not  be  prejudicial  to  the  rights  of  the  party  complaining  of 
want  of  notice;  as  an  error  in  a  name,  or  the  day  of  the  week 
on  which  the  term  commences.     The  matter  to  be  determined 


'Hanvood  v.  Smolluust,  80  N.  J.  L.,  230. 

"  Supra. 

3  Cliiudct  V.  Prince,  3  Q.  B.,  400. 

*  Stevens  v.  Curry,  10  Minn.,  JUG. 
'Commonwealth  v.  Intoxicating  Liqviors,  13  Allen,  501. 

•  Jenks  V.  Payne,  15  Johns.,  399. 


502  PRACTICE    AND    PLEADING. 

is  whether  the  party  or  his  attorney  was  misled  by  the  defect, 
and  in  deciding  this  question  the  court  will  not  be  restricted 
to  the  face  of  the  notice,  bat  will  inquire  into  all  the  other 
circumstances.^ 

§  1178.  Statement  of  Wrong  Day.  —  As  where  the  day  on 
which  the  term  commenced  was  given  as  "the  third  Tuesday" 
instead  of  "the  third  Monday,"  and  on  the  AVednesday  fol- 
lowing the  third  Tuesday  the  party  who  had  noticed  the 
cause  for  trial  took  an  inquest;  a  motion  to  set  aside  the 
inquest  was  denied  because  the  attorney  upon  whom  the  notice 
was  served  had  retained  the  same  and  it  did  not  appear  that 
he  was  in  any  wise  misled  by  its  inaccurate  statement  of  the 
day  of  the  commencement  of  the  term.'* 

^  1179.  Failure  to  Plaee  on  Calendar.  — But  where  the  defend- 
ant had  noticed  the  cause  for  trial  and  had  failed  to  place  it 
upon  the  calendar  pursuant  to  such  notice,  and  the  plaintiff's 
attorney  attended  the  court  on  the  second  day,  but  finding  no 
such  cause  on  the  calendar  and  being  assured  by  the  partner 
of  defendant's  attorney  that  there  was  no  intention  to  move  in 
the  case,  gave  it  no  further  attention,  an  order  of  dismissal 
taken  by  defendant  was  held  ii-regular  and  was  set  aside 
because  plaintift's  attorney  was  clearly  misled.^ 

§1180.  Wisconsin  Code.  —  The  Wisconsin  code  differs  some- 
what from  that  of  Xew  York  with  respect  to  notices  of  trial. 
The  latter  has  already  been  copied.*  The  former  provides  that 
"at  any  time  after  issue  joined  in  unj  civil  action,  either  party 
ma}'  bring  the  same  on  for  trial  at  any  term  of  the  court  at 
which  the  same  is  triable,  by  giving  notice  of  trial  at  least 
ten  days  before  such  terra.  "^  In  construing  this  section  it 
was  held  that  the  language  of  the  section  clearly  indicated 
that  the  party  who  would  force  the  other  to  trial  must  him- 

1  Wolfe  V.  Horlon,  3  Caines,  80 ;  Bander  v.  ("ovill.  4  Cow..  60 ;  Down  v.  Rice, 
11  Wend.,  178. 
"^  N.  Y.  Cent.  Ins.  Co.  v.  Kelsey,  13  How.  Pr.,  535:  Bander  n.  Covill,  Snpm. 
^Browning  v.  Paige,  7  How.  Pr.,  487. 
*  Ante^  page  497.' 
«  Laws  Wis.,  1859.  Cliap.  71,  §  1 ;  Stat.  Wis.  1871.  p.  1404,  ^  9.      In  certain 


NOTICE    OF    TEIAL.  503 

self  give  the  notice.  The  intention  of  the  statute  was  not 
merely  to  secure  the  placing  of  the  cause  upon  the  calendar, 
but  was  intended  to  modify  or  repeal  a  former  statute  provid- 
ing that  either  party,  in  the  absence  of  the  other,  might  call 
any  case  npon  the  calendar,  up  for  trial.  And  where  the  case 
was  noticed  for  trial  by  the  defendant,  plaintiff  could  not, 
under  the  provisions  of  the  later  statute,  call  the  case  up  and 
take  judgment  in  the  absence  of  tlie  defendant.^ 

§  1181.  Time  under  English  Rule.  —  In  England  where  the 
rule  for  "town  causes"  was  eight  days'  notice  to  those  who 
were  resident  in  town,  or  within  forty  computed  miles  thereof, 
and  fourteen  days  to  those  who  resided  more  than  forty  miles 
distant,  it  was  held  that  a  party  who  since  the  institution  of 
the  suit  had  removed  to  the  distance  of  forty  miles,  was  enti- 
tled to  the  longer  notice.^  But  to  entitle  a  party  who  had 
removed  from  town  after  the  commencement  of  the  suit,  to 
fourteen  days'  notice  of  trial,  it  was  also  held  that  he  should 
give  the  opposite  party  notice  of  such  removah^  And  where 
defendant  had  constant!}^  resided  in  town  from  the  time  of  the 
arrest,  thougli  his  home  was  more  than  forty  miles  from  town, 
it  was  held  that  in  a  town  cause  he  was  only  entitled  to  eight 
days'  notice  of  trial.* 

actions  specified,  the  defendant  may  notice  the  action  for  hearing  or  trial, 
hoth  upon  questions  of  law  and  fact,  regardless  of  whether  issue  has  been 
joined  upon  the  facts  or  not.    lb.,  p.  1495,  §  10. 

1  Buckley  v.  Lewis,  20  Wis.,  490. 

«  Spencer  v.  Hall,  1  East,  688. 

3  Rochfort  v.  Robertson,  12  East,  427. 

«  Lloyd  V.  Hooper,  7  East,  624. 


504  PRACTIOB    AND    PLEADING. 


III.  Notice   of   Motions  and   other   Inteblooutoby 

J:*R0CEEDINGS. 


§1183.  Motions. 

1183.  Notice  by  Eatry  iu  Book. 

1184.  TVTien  Eequired. 

1185.  Presence  of  Counsel  will  not  Waive. 

1186.  Parties  Charged  with  Notice  of  Motion. 

1187.  Motion  in  tiie  Nature  of  Summary  Proceeding. 

1188.  Motion  to  Set  Aside  Sheriff's  Sale. 

1189.  Filed  in  Term  Time. 

1190.  Examples  under  Different  Statutes. 

1191.  Motion  to  Dismiss  Appeal. 

1192.  Sufficiency  of  Notice. 

1193.  Substantial  Accuracy. 

1194.  Against  Constable. 

1195.  Designation  of  Court. 

1196.  Date  of  Filing. 

1197.  Circumstances  Affecting  Sufficiency. 

1198.  Notice  Generally  in  Writing. 

1199.  Service  of  Notice. 

1200.  Upon  the  Party  Affected 

1201.  Time  of  Notice. 
1203.  Motion  for  New  Trial. 

1203.  Waiver  by  Appearance. 

1204.  Notice  of  Reference. 

1205.  Notice  of  Reinstatement. 

1206.  Rule  to  Show  Cause. 

1207.  Examination  of  Accounts. 


§  1182.  Motions.  —  The  motions  that  are  made  in  the  pro- 
gress of  a  trial,  or  used  to  institute  proceedings  in  court,  are 
too  numerous  and  diverse  in  character  to  render  it  either  prac- 
ticable or  useful,  for  the  purposes  of  this  work,  to  attempt  an 
enumeration  of  them,  in  order  to  state  when  and  under  what 
circumstances  a  notice  of  such  motion  should  be  given  to  the 
opposite  party,  or  might   be  dispensed   with.     Neither  is  it 


NOTICE    OF    PROCEEDINGS.  .'>05 

iiecessaiy  to  set  out  in  detail  the  provi?^ious  of  the  various  stat- 
utes upon  this  subject.  It  will  be  sufficient  to  give  such  gen- 
eral rules  as  may  be  extracted  from  the  judicial  construction 
given  to  statutes  bearing  upon  the  subject,  and  to  endeavor  to 
properly  set  forth  the  methods  favored  by  the  courts  for 
imparting  notice  of  such  motions. 

§  1183.  Notice  by  Entry  in  Book.  —  The  practice  of  serving  the 
opposite  party  with  notice  of  motions  is  not  at  all  uniform. 
In  some  of  the  states  the  only  notice  received  of  the  filing  of 
an  interlocutory  motion,  by  the  party  to  be  affected  thereby, 
is  by  its  filing  in  open  court,  or  by  an  entry  in  a  book,  vari- 
ously designated  as  "  Motion  Docket,"  "  Law  Docket,"  or 
"  Law  Calendar,"  kept  for  that  purpose,  in  court  during  term 
time,  and  in  the  office  of  the  clerk  of  such  court  during  vaca- 
tion. This  book  is  at  all  times  open  to  inspection,  and  when 
a  motion  is  entered  there,  the  attorney  for  the  opposite  party 
is  presumed  to  be  fully  notified  of  the  pendency  of  such 
motion.  Even  the  keeping  of  sucli  book  is  not  always  pre- 
scribed by  statute,  but  is  in  some  instances  left  to  the  discre- 
tion of  the  court,  to  be  laid  down  as  one  of  its  rules  or  entirely 
omitted,  as  may  be  deemed  most  expedient.  We  shall  not 
attempt  to  enter  minutely  into  a  consideration  of  such  notices 
of  motions  as  are  given  in  this  manner,  but  shall  confine  our 
attention  to  such  as  are  given  by  the  mover  or  his  attorney  to 
the  party  to  be  affected,  or  the  attorney  of  such  i)arty,  by 
means  of  regular  sei-vice  of  such  notice  in  writing. 

^  1184.  Wlien  Required.  —  And  first,  as  to  when  notice  of  a 
motion  should  be  given.  In  general,  when  the  motion  extends 
to  and  attects  the  interest  of  the  party  against  whom  the 
mention  is  made  beyond  his  process,  such  party  or  his  attorney 
must  1)6  served  with  notice  ;  as,  where  the  motion  is  by 
defcixhuit,  to  have  an  execution  against  him,  entered  satisfied. 
Though  if  the  motion  mei-ely  affected  the  process,  the  j)arty  be- 
ing supposed  to  be  ])resent  in  court  with  his  process,  it  was 
held  such  motion  might  have  been  made  without  notice.* 

'  Haley  V.  Williums,  s  Sm.  &   M.,  487. 


500  Vl{A(^TICK    AND    PLEADING. 

§  1185.  Presence  of  Counsel  will  not   Waive.  —  However,  it  is 

not  to  be  inferred  that  the  mere  presence  of  the  party  or  his 
nttorney  in  court  when  the  motion  is  made  will  always  be  suf- 
ficient to  dispense  with  a  notice  of  such  motion.  On  the  con- 
trary, it  has  been  held  that  the  certificate  of  a  judge,  that 
counsel  of  the  adverse  party  was  in  court  when  a  motion  was 
made,  but  without  stating  that  such  connsel  had  notice  or 
knowledge  of  the  motion,  was  not  sufficient  to  show  notice  to 
him.^ 

§  1186.  Parties  Charged  with  Notice  of  Motion.  —  Elsewhere  it 
has  been  held  that  when  a  party  is  once  in  court,  he  must,  at 
his  peril,  take  notice  of  all  orders  and  all  pleadings  filed  hy 
order  of  the  court}  But  the  distinction  bettveen  motions  or 
pleadings  filed  by  order  of  the  court,  and  those  filed  by  the 
party  at  his  own  instance,  is  quite  obvious. 

§  118 Y.  Motion  in  the  Nature  of  Summai'y  Proceeding.  — Where 
the  motion  is  in  the  nature  of  a  summai-y  proceeding  against 
some  one  who  has  not  already  been  bronght  in  by  process, 
notice  of  such  motion  should  alwaj'S  be  given.  As  where  it 
is  for  the  removal  of  a  jailor  or  other  ministerial  officer,  for 
alleged  malfeasance  or  misfeasance,  such  motion  should  not  be 
sustained  where  the  officer  has  not  been  duly  notified  of  its 
pendency  against  him.^  Where  the  motion  was  for  judgment 
against  a  sheriff  for  making  a  false  return,  it  was  held  that  to 
allow  judgment  to  go  according  to  such  motion,  without  giving 
the  sheriff  such  notice  as  would  enable  him  to  appear  and 
make  his  defense,  would  be  equivalent  to  the  prosecution  of  a 
civil  suit  against  a  defendant  upon  whom  original  process  had 
never  been  served.  He  would  not  have  his  day  in  court,  and 
hence  such  judgment  would  be  absolutely  void.* 

§1188.  Motion  to  Set  Aside  Sheriff's  Sale.  —  So,  also,  should 
notice   be  given  of  a  motion  to  set  aside  a  sheriff's  sale,^  or  to 

J  Shotwell  t.  Rowell.  30  Ga.,  557. 
"Williams  v.  Miller.  1  Wash.  Terr.,  105. 
^Gorham  v.  Liickelt,  6  B.  Monr.,  14(). 
*  Jenkins  v.  State,  3:5  Miss.,  382. 
'Osborn  v.  Cloud,  21  Iowa,  288. 


NOTICE    OF    PROCEEDINGS.  507 

set  aside  an  order  of  court  made  at  a  prior  term  of  court;'  in 
either  of  which  cases  the  notice  should  be  given  to  all  parties 
interested.  But  a  motion  made  to  set  aside  a  verdict,  rendered 
at  the  same  term  at  which  the  motion  was  made,  was  held  not 
to  require  any  formal  notice,  because  being  made  at  the  same 
term  at  which  the  trial  was  had,  it  thereby  became  a  part  of 
the  trial.^  Nor  is  notice  necessary  of  a  motion  to  set  aside  a 
default  entered  by  a  justice  of  the  peace,  even  in  states  where 
notice  of  motion  is  generally  required.^ 

§1189.  Filed  in  Term  Time. — It  has  also,  been  held  that 
motions  filed  in  term  time  do  not  require  the  service  of  notice 
on  the  opposite  J)art3",  when  such  motion  has  reference  to  a 
proceeding  before  the  court  at  the  term  at  which  the  motion 
was  made,* 

§1190.  Examples  nmler  Different  Statutes. —  In  general  the 
codes  require  notice  to  be  given  of  an  intended  motion  for  a 
new  trial.^  Also  of  a  motion  for  alimony  incident  to  a  decree 
of  divorce,  wdiich  is  in  the  nature  of  a  summary  proceeding, 
and  the  notice  answers  the  same  purpose  as  the  original  process 
in  the  litigation  of  any  claim  or  demand,  and  consequently 
should  be  served  the  full  time  prescribed  by  statute  for  tlie 
service  of  such  notices  ;  otherwise  they  should  not  be  heard.® 
But  under  a  statute  of  the  State  of  Georgia  it  was  held  that 
where  the  object  of  the  motion  was  to  establish  copies  of 
ofiice  papers,  notice  was  not  indispensable.^ 

§  1191.  Motion  to  Dismiss  Appeal.  —  Where  a  motion  was 
made  to  dismiss  an  appeal,  it  was  held  that  as  the  parties  were 
supposed  to  be  in  court  after  continuance,  for  collateral  motions, 
they  were  not  entitled  to  any  other  notice   than  the  entry  of 


'  Kceney  o.  Lyon,  21  Iowa,  277. 
"  Hansen  v.  Fisli,  27  Wis.,  5;]5. 
'Btivcrs  V.  Thompson,  15  Iowa,  1. 
"Wagner  v.  Tice,  mi  Iowa,  nO!). 

'Killjp  «.  Empire   Mill    Co.,  2  Nev.,   34;  Coveny  «.  Hale,  49  Cal.,  552; 
Markward  v.  Doriat,  21  Ohio  St.,  637. 
''  Wilde  V.  Wilde,  2  Nev.,  30G. 
'Saunders  v.  Smith,  3  Ga.,  121. 


5t»8  PRACTICE    AKD    PLEADIXG. 

such  motion  on  the  law  docket,  according  to  the  practice  of 
the  court.^ 

§  1192.  Sufficiency  of  Notice.  — Next,  as  to  what  is  sufficient 
notice  of  a  motion.  Where  formal  notice  is  required  at  all, 
beyond  the  entry  of  the  motion  itself  in  the  docket  or  calendar, 
the  almost  universal  requirement  is  that  it  shall  be  reduced 
to  writing,  and  regularly  served  upon  the  party  or  his  attorney. 
And  such  notice  should  contain  a  statement  sufficiently  specific 
and  certain,  to  advise  the  party  so  served  of  the  nature  of  the 
motion  to  be  made  and  of  the  particular  matter  in  contro- 
versy to  be  affected  by  such  motion.  And  where  the  motion 
is  to  be  directed  to  a  matter  affecting  the  interests  of  the  party 
notified,  and  he  would  have  the  right  to  explain  or  deny  by 
affidavit,  the  matter  constituting  the  grounds  alleged  for. 
the  motion,  such  ground  should  be  stated  with  reasonable 
certainty  in  the  notice.^ 

§  119?>.  Substantial  Accuracy.  —  As  in  other  matters  of  prac- 
tice, so  in  this,  is  the  notice  prescribed,  one  which  depends  for 
its  sufficiency,  more  upon  a  substantial  subservience  of  the 
objects  and  purposes  for  which  it  was  designed,  than  upon 
any  technical  precision  of  its  statemcTits.  So,  even  where  the 
motion  noticed  was  in  the  nature  of  a  summary  proceeding 
under  the  statute,  for  the  purpose  of  cliarging  the  party  noti- 
fied with  a  debt,  it  was  held  sufficiently  definite,  if  it  de- 
scribed with  reasonable  certainty  the  debt  with  reference  to 
which  the  motion  was  to  be  made.'^ 

^:$  1194.  A;2;ainst  Constable.  —  So,  where  the  motion  was  against 
a  constable,  charging  him  with  neglect  of  duty,  and  was  in 
the  nature  of  a  pleading,  substantial  certainty  in  the  notice 
was  sufficient.  The  judgment  with  reference  to  which  the 
neglect  was  alleged,  being  described  as  against  "  P  and  others" 
while  it  appeared  in  evidence  that  it  was  against  "P  it  L/' 
the  error  was  held  immaterial.*     Rut  where  the  motion  noticed 

'  Papin  V.  Buckiughaiu,  '63  Mo.,  454. 

'Brower  v.  Brooks,  1  Barb.,  42:];  Freeborn  v.  Glazier,  10  Cal.,  ?uil 

'  Colgin  v.  State  Bank,  11  Ala.,  2'22. 

*Hix  V.  Cornelison,  7  C'okhv.  Teiiii.,  iD'J. 


NOTICE    OF    PROCEEDINGS.  509 

was  against  a  constable  for  neglect  of  duty  in  not  paying  over 
money  collected  on  claims  placed  in  his  hands,  the  notice  was 
held  fatally  defective  for  not  averring  that  he  had  collected  any 
money  on  snch  claims.^ 

§  1195.  Designation  of  Court.  — Where  the  notice  designates 
the  court  in  which  the  motion  is  to  be  made,  the  place  of  hold- 
ing such  court,  being  a  matter  of  which  every  one  is  supposed 
to  take  notice,  need  not  be  stated  in  the  notice,  in  order  to 
render  the  same  sufficient.^ 

§  1196.  Date  of  Filing,  —  But  where  a  motion  is  to  be  made 
for  judgment,  the  notice  should  give  the  correct  date  when  the 
motion  will  be  made,  for  the  same  reason  that  the  original 
process  is  required  to  be  specific  in  this  particular.  It  was 
accordingly  held,  Mdiere  notice  was  given  that  a  motion  for 
judgment  against  a  sheriff  would  be  made  on  the  fourth  of 
the  month,  and  such  motion  was  filed  on  the  tTiird^  and  ordered 
to  lie  over,  and  was  taken  up  subsequent  to  the  fourth,  and 
judgment  rendered  thereon,  that  such  judgment  Mas  void.^ 
But  where  the  notice  was  given  of  a  motion  to  be  made  on  the 
twenty-fifth  of  the  month,  and  the  court  adjourned  over  that 
day,  it  was  held  that  the  motion  might  be  heard  on  a  day 
subsequent  to  the  twenty-tifth,  without  a  new  notice.* 

§  119Y.  Circnni.stances  Affecting  Sufficiency.  —  The  sufficiency 
of  the  notice  often  depends  upon  collateral  circumstances.  As 
where  the  motion  was  for  judgment  on  a  bond,  given  to  sus- 
pend a  sale  of  property  levied  on  to  satisfy  an  execution,  the 
sufficiency  of  the  notice  was  determined  by  considering  it  in 
connection  with  the  bond.^ 

§  1198.  Notice  Generally  in  Writing.  —  The  rule  seems  almost 
universal  that  the  notice  should  be  written,  except  where  there 
is  an  express  waiver,  or  such  conduct  by  the  party  as  will  estop 
him  from  denying  the  receipt  of  notice.     It  was  according!}' 

'  Barrett  v.  Smith,  4  W.  Va.,  709. 

•■'  Brown  «.  State,  8  Hei.sk.,  Tenn.,  871. 

'  Foster  w.  Wade.  4  Met.  (Ivy.),  252. 

*  Piatt  V.  Robinson,  10  Wis.,  128. 

*  Smith  '0.  Wells'  Admr's,  4  Bush.  (Ky.),  92. 


510  TRAOTICK    AND    PLI;AI)ING. 

lield  that  an  infonnal  verbal  notice  of  a  motion  for  a  new- 
trial,  given  out  of  court,  while  in  conversation  with  opposing 
counsel,  would  not  be  sufficient.^ 

§  1199.  Service  of  Notice.  —  Another  important  matter  for 
consideration,  in  connection  with  this  branch  of  the  subject,  is 
service  of  such  notices  ;  which  necessarily  includes,  upon 
'whom  and  hy  whom  the  service  of  notice  should  be  made,  as 
well  as  the  time  and  manner  of  making  such  service.  The 
I'ules  applicable  to  the  service  of  other  notices  will  be  found 
generally  applicable  to  service  of  notice  of  a  motion,  and  these 
rules  we  shall  endeavor  to  illustrate  more  fully  elsewhere.? 
It  may  be  ])roper  to  state  here,  however,  tliat  the  notice  of  a 
motion  should  always  be  served  upon  the  party  to  be  affected 
thereby,  or  upon  his  attorney  of  record,  if  he  have  one."^ 
When  the  motion  is  one  arising  in  the  course  of  the  trial  of  a 
cause,  a  decided  preference  seems  to  be  given  to  service  hy  the 
attorney  of  the  party  giving  the  notice,  and  U])on\\\Q  attorney 
of  the  opposite  party,  not  only  as  a  matter  of  general  conven- 
ience, but  as  a  positive  rule  of  practice,  laid  down  by  some  ot 
the  courts.** 

§  1200.  Upon  tlie  Party  Affected.  —  In  the  case  of  Walker  v. 
Scott,'^  it  was  decided  that  the  judgment,  which  should  have 
been  against  the  principal  and  his  suret}-,  being  by  mistake 
entered  against  the  principal  alone,  miglit,  on  motion,  bo 
amended  by  adding  the  name  of  the  surety,  and  it  would  not 
be  necessarj^  to  serve  notice  of  such  motion  on  tlie  principal. 
This  holding  was  obviously  for  the  reason  that  the  principal 
was  not  the  party  interested  in  the  motion. 

§1201.  Time  of  Notice.  —  The  length  of  time  for  which  the 
notice  must  be  given  of  an  intended  motion,  before  the  same 
will  1)0  considered  by  the  court,  varies   according   to  the  char- 

'  Killip  %.  Empire  ^lill  Co.,  2  Nev.,  34 ;  Pearscm  v.  Lovpjoy,  5;!  Barb.  (N.  Y.), 
407;  Butler  V.  Mitchell.  17  Wis.,  52;  Bear  River  &  Auburn,  d;c.,  Co.  ®. 
Boles,  24  Cal.,  354. 

■^  See  Post  VII.     Service. 

8  Walker  ®.  Scott,  29  Ga.,  H92. 

*  Hanling  w.  Staflbrd,  Say'  I?<-p.,  13:1;  Ilalsey  «.  Carter,  6  Rol).  N.  Y.,  535. 

'  bupra. 


NOTICE    OF    TROCEP^DINGS.  511 

Hcter  of  the  motion,  as  well  as  the  difference  in  tlie  practice  ot 
the  different  courts  ;  hut  where  no  fixed  rule  is  prescribed  by 
statute  or  rule  of  court,  it  will  be  sufficient  if  the  notice  is 
served  a  reasonable  time  before  the  court  takes  action  in  the 
matter.^  And  even  where  the  time  is  fixed  by  rule,  it  is  fre- 
quently subject  to  the  will  of  the  court,  in  the  exercise  of  a 
sound  discretion,  to  shorten  the  time  in  particular  instances, 
before  the  service  of  the  notice.'^ 

§  1202.  Motion  for  New  Trial.  — It  has  been  held  that  movin<^- 
for  a  new  trial  will  continue  the  jurisdiction  of  the  court  over 
the  cause  beyond  the  term,  when  due  notice  of  the  intention 
to  so  move  has  been  given,  and  such  notice  is  followed  up  by 
a  statement  or  affidavit  of  what  the  motion  will  contain,  made 
in  due  time  ;  but  if  the  notice  and  subsequent  statement  are 
not  made  within  the  statutory  time,  the  court  loses  jurisdic- 
tion of  the  cause  at  the  end  of  the  term,  and  tliereafter  cannot 
set  aside  a  judgment,  however  erroneous  it  may  be.^ 

§  1203.  Waiver  by  Appearance. — Irregularities  in  the  notice, 
however,  which  might  furnish  sufficient  grounds  for  overruling 
the  motion,  or  even  for  setting  aside  the  order  or  judgment 
based  upon  such  motion,  where  the  same  had  been  sustained, 
may  all  be  waived  by  an  appearance  for  the  purpose  of  con- 
testing the  motion  when  the  same  comes  up  for  hearing.^ 

§  120-1.  Notice  of  Reference.  —  One  of  the  proceedings  where 
notice  becomes  necessary,  is  when  a  cause  is  by  the  court 
referred  to  a  master,  or  to  a  special  referee  appointed  for  that 
purpose.  If  the  order  of  reference  is  made  in  the  absence  of 
either  party  or  his  attorney,  such  absent  party  or  attorney 
would  be  entitled  to  notice  thereof,  in  some  form.  And  when 
the  reference  is  made  the  parties  or  their  attorneys  should  be 
duly  notified  of  the  hearing.     This  notice  must  be  given  in  a 

'  Bnicn  V.  JJnieii,  48  111.,  408;  Covenj-  ■».  Ilale,  49  Cal.,  r)r)2;  DainbnianD  «. 
White,  48  (;al.,  4H!»;  Crowthcr  v.  liowlandson,  27  Cal.,  870;  8  Price,  508; 
Doufrlas  V.  Ray,  4  Diirnl".  k,  East,  552. 

» Rogers  ■«.  McEUionc,  12  Abb.  Pr..  892. 

''State  <n.  First  National  Bank,  4  Nov.,  ;]58;  Caney  v.  Silverthoru,  9  Cal., 
67;  Calderwood  0.  IJrook.s,  28  Cal.,  151. 

*  Brown  ■».  Stall',  8  Heisk.  (Teiin.),  871. 


512  rRACTICE    AXD    PLEADING. 

reasonable  time  so  as  to  enable  the  one  notified  to  be  in  attend- 
ance at  the  time  without  using  extraordinary  diligence.  So 
that,  in  one  instance,  three  days'  notice,  where  that  time  was 
barely  sufficient,  barring  all  delays,  to  allow  the  attorney  of 
the  opposite  party  to  attend  the  hearing,  was  held  insufficient.^ 
But  it  has  been  held  that  where  a  cause  is  unnecessarily 
referred,  all  the  facts  necessary  to  a  decree  being  in  possession 
of  the  court,  there  is  no  necessity  for  notice  to  the  opposite 
party  of  such  reference.''^ 

§1205.  Notice  of  Reinstatement.  —  Where  a  cause  has  been 
finally  disposed  of  by  confirmation  of  the  masters  report,  if 
either  party  desires  to  reinstate  the  case,  for  the  purpose  of 
instituting  further  proceedings  in  relation  thereto,  it  must  be 
iipon  due  notice  to  the  opposite  part3^  And  where  such  a 
case  was  reinstated  at  a  term  next  succeeding  the  one  at  which 
the  report  was  confirmed,  without  notice  to  the  opposite  party, 
it  was  held  that  all  subsequent  proceedings  and  orders  aflfect- 
ing  the  interests  of  the  party  not  notified,  would  not  only  be 
irregular,  but  absolutely  void.^ 

§  1206.  Rule  to  Show  Cause.  —  Where  a  rule  to  show  cause 
Avhy  a  petition  should  not  be  dismissed,  had  been  continued 
indefinitely,  and  it  was  finally  fixed  for  a  time  certain,  it  was 
held  that  the  party  against  whom  the  rule  was  granted  would 
be  entitled  to  reasonable  notice  of  the  fixing '  thereof.*  Upon 
the  same  principle  if  the  continuance  was  at  the  instance  of 
the  party  subject  to  the  rule,  and  the  fixing  of  the  rule  was  on 
his  application  or  with  his  knowledge,  the  opposite  party 
should  have  notice.  But  where  a  foreclosure  suit  M'as  revived, 
by  scire  facias,  against  the  heirs  of  a  deceased  mortgagoi', 
under  a  statute  requiring  the  filing  of  the  response  and  the 
service  of  a  copy  on  the  attorneys  of  the  plaintiff",  it  was  held 
that  the  notice  was  not  void   by  reason  of  its  failing  to  fix  a 

'  Strang  v.  Allen,  44  111.,  428. 

•'Michigan  .  Insurance  Co.  v.  Whittimoro,  \i  Midi.,  427;  Kellogg  «.  Put- 
nam, 11  Mich.,  344. 

•'  Mulvey  v.  Carpenter,  78  111.,  .j80. 

*Henaen  «.  New  Orleans  &  C.  R.  R.  Co.,  20  La.  An.,  544. 


NOTICE    OF    APPEAL.  513 

time  for  showing  cause;  because  the  practice  in  such  cases  was 
a  matter  of  statutory  regulation,  and  the  fixing  of  the  time  bj 
the  notice  was  not  required  by  statute.^ 

§  1207.  Examination  of  Accounts.  — An  accounting  party  may 
be  cross-examined  on  his  accounts,  after  the  same  have  been 
submitted.  When  this  is  done,  he  is  generally  entitled  to 
notice  of  such  cross-examination,  and  the  notice  should  specify 
the  points  upon  which  the  examination  is  to  proceed.^ 


lY    Notice  of  Appeal. 

§  1208.  Not  Always  Kequired. 

1209.  Written,  and  Served  upon  Attorney. 

1210.  In  Criminal  Cases. 

1211.  Justices  of  the  Peace. 

1212.  When  Notice  Serves  as  an  Assignment  of  Errors. 

1213.  Grounds  of  Appeal. 

1214.  Assent  to  Judgment. 

1215.  Must  be  on  Same  Day. 
121G.  Must  be  Given  in  Time. 

1217.  Personal  Service  not  Required. 

1218.  Notice  to  be  Given  to  Co-Parties. 

1219.  Does  not  Depend  upon  Conflict  of  Interest. 

1220.  AVaived  by  Appearance. 

§  1208.  Not  Always  Required.  —  The  rules  governing  the 
notice  of  appeal  possess  very  few  features  of  a  peculiar  char- 
acter, to  distinguish  them  from  those  applicable  to  notices  of 
other  court  proceedings.  Under  the  code  practice  of  some  of 
the  States  of  the  Union,  there  is  practically  no  such  thing  as 
a  notice  of  appeals,  except  where  they  are  taken  from  judg- 
ments of  justices  of  the  peace  and  other  inferior  courts.     The 


'  Durbin  v.  Waldo,  15  Wis.,  352. 
sMcArthur  v.  Dudgeon,  15  Eq.  Cas  ,  103. 
33 


514  PRACTICE    AND    PLEADING. 

proceedings  to  perfect  the  appeal  take  place  in  open  court,  and 
the  appellee  is  required  to  take  notice  of  such  proceedings,  to 
the  same  extent  as  he  would  of  the  rendition  of  the  judgment. 

§  1209.  Written,  and  Served  upon  Attorney.  —  This,  like  most 
of  the  notices  required  in  practice,  should  be  written  ;^  and, 
in  civil  actions  where  the  opposite  party  appears  by  attorney 
may  in  every  instance  be  served  upon  the  attorney,  and  may 
be  signed  by  the  attorney  of  appellant.^  In  some  of  the  states, 
in  cases  where  an  attorney  has  been  employed,  the  service  of 
the  notice  is  required  to  be  made  upon  him.^ 

§  1210.  In  Criminal  Cases.  — There  is  perhaps  no  very  good 
reason  for  a  contrary  rule  in  criminal  cases,  and  where  the 
appeal  is  taken  by  the  defendant,  the  notice  could  be  served 
upon  the  state's  attorney.  But  it  has  been  decided  when  the 
appeal  was  taken  by  the  state,  that  notice  of  appeal  served  upon 
defendant's  counsel  was  not  in  compliance  with  the  statute, 
and  because  the  notice  was  not  served  upon  the  defendant  in 
person,  the  appeal  was  dismissed.*  Though,  when  the  defend- 
ant cannot  be  found,  the  notice  may  be  effectually  served  by 
posting  it  in  the  office  of  the  clerk  of  the  court.^  However, 
it  has  been  held  that  in  case  of  an  appeal  from  an  order  chang- 
ing the  place  of  trial,  the  notice  should  be  served  upon  the 
clerk  of  the  court  in  which  such  order  is  made.^ 

§  1211.  Justices  of  the  Peace.  —  Under  a  statute  of  a  state 
where  such  notice  was  exacted  in  every  case  of  an  appeal  from 
a  judgment  of  a  justice  of  the  peace,^  and  appeals  were  held  to 

'  Masterson  v.  Herndon,  10  Wall.,  416;  Larrabee  v.  Morrison,  15  Minn., 
196.  In  this  case  it  was  held  that  an  omission  of  the  signature  to  the  notice 
might  be  taken  advantage  of  after  admission  of  service.  Tiffin  v.  Milling- 
ton,  3  Mo.,  418,  where  it  is  decided  that  such  notice  cannot  be  properly 
served  by  reading  the  same  to  the  oi)posite  party,  but  the  writing  must  be 
delivered  to  him. 

*  Larrabee  v.  Morrison,  Supra. 

» Abrahms  v.  Stokes,  39  Cat,  150 ;  Tripp  v.  De  Bow,  5  How.  N.  Y.  Pr.,  114. 
■•  State  V.  Brandon,  6  Kans.,  248 ;  State  v.  Baird,  9  Kans.,  60. 
'  Ibid. 

*  Hass  V.  Weinhagen,  30  Wis.,  326. 

*  Masterson  v.  Ellington,  10  Mo.,  712;  McCabe  v.  Lecompt,  15  Mo.,  78. 


NOTICE    OF    APPEAL.  615 

be  properly  dismissed  for  the  slightest  variation  from  statutory 
requirements  in  the  matter  of  describing  the  case,  the  author- 
ity of  the  person  or  officer  making  the  service/  of  the  time  ot 
service  or  any  other  essential  particular,^  it  was  held  that  such 
notice  might  be  executed  by  an  agent  in  the  name  of  his 
principal,^  and  that  a  want  of  notice  might  be  waived  by  the 
appellee's  appearance  and  moving  to  dismiss  on  account  of  an 
informality  in  the  bond.* 

§  1212.  When  Notice  Serves  as  an  Assignment  of  Errors.  —  In 
the  State  of  New  York,  the  notice  of  appeal  from  an  inferior 
court  seems  to  serve  the  purpose  in  the  appellate  court  of  an 
assignment  of  errors  or  bill  of  exceptions.  On  appeal,  or 
error,  the  appellant  or  plaintiff  in  error  is  confined  to  the 
ground  of  appeal  assigned  in  the  notice,  or  tlie  error  therein 
complained  of,  with  the  same  strictness  as  parties  to  suits  in 
courts  of  general  jurisdiction  are  restricted  to  the  allegations 
in  their  written  pleadings.^  And  such  notice  is  required  to 
point  out  clearly  the  grounds  of  appeal.  It  was  accordingly 
held  in  an  appeal  from  the  judgment  of  the  court  of  common 
pleas,  that  it  was  not  sufficient  for  the  notice  to  state  that  the 
judgment  was  against  the  law  and  evidence.* 

§  1213.  Grounds  of  Appeal.  —  So,  in  case  of  an  appeal  from 
the  judgment  of  a  justice  of  the  peace,  u])on  the  law,  where 
the  grounds  of  appeal  assigned  were  that  the  evidence  "  was 
incompetent,  did  not  support  the  judgment,  that  on  it  the 
plaintiff  was  not  entitled  to  recover,  and  that  the  judgment 
was  contrary  to  law,"  the  notice  was  held  insufficient  to  sus- 
tain the  appeal,  because  it  did  not  point  out  specifically  the 
errors  in  the  judgment  appealed  from.''     But  where  one  good 

1  Tiffin  V.  Millington,  3  Mo.,  418. 

5  Hempstead  v.  Darby,  2  Mo.,  25 ;  Cochran  v.  Bird,  Id.,  141 ;  Hayton  v. 
Hope,  '3  Mo.,  53. 

3Runkle  v.  Hogan,  3  Mo.,  234. 

♦Rector  v.  St.  Louis  Circ.  Ct.,  1  Mo.,  607, 

'Delong  ».  Brainard.  1  Tliomp.  &  C.  (N.  Y.),  1;  Avery  v  Woodbeck,  5 
Lans.  (N.  Y.),  498 ;  S-  C  ,  63  Barb.,  557.  See  Code  oi  Procedure,  N.  Y.,  §  353. 

»Begley  v.  Chose,  4  Daly  (N.  Y.),  157. 

'  Dcloug  ».  Brainard,  1  Thomp.  &  C.  (N.  Y.),  1. 


516  PKACTICE    AND    PLEADING. 

ground  of  appeal  is  assigned  in  the  notice,  it  seems  the  appeal 
will  not  be  dismissed,  whetlier  it  be  an  appeal  upon  the  law, 
or  i\\e  facts  /  as  the  provisions  of  the  code  ^  appear  to  apply  to 
both  alike.^ 

§  1214.  Assent  to  Judgment.  — Another  requisite  of  the  notice 
under  the  New  York  practice  is  tliat  it  shall  contain  an  assent 
that,  "  if  the  judgment  be  affirmed,  judgment  absolute  may  be 
rendered  against  the  appellant  ; "  but  where  this  is  omitted  by 
mistake  it  maybe  supplied  by  amendment,  even  after  the  expi- 
ration of  the  time  for  appeal,  nunc  pro  tunc} 

§  1215.  On  Same  Day.  —  Under  the  code  of  civil  procedure  of 
the  State  of  California,  the  filing  of  the  notice  of  appeal,  the 
undertaking  and  the  service  of  notice  must  be  effected  on  the 
same  day.  The  notice  may  be  served  personally,  or  in  any  of 
the  other  modes  provided  by  statute  for  the  service  of  similar 
papers,  and  when  the  appeal  fails  for  the  want  of  timely  notice, 
a  new  appeal  may  be  taken.' 

§  1216.  Must  be  Given  in  Time.  —  So,  also,  where  the  practice 
under  the  code  of  another  state,^  was  to  give  ten  days'  notice 
of  appeals  from  the  judgments  of  justices'  courts,  it  was  held 
that  a  failure  to  give  the  notice  precisely  within  the  time  would 
not  be  such  a  serious  default  as  to  preclude  the  party  from  the 
right  to  have  his  case  re-heard.^ 

§1217.  Personal  Service  not  Required,  —  The  necessity  for  a 
relaxation  of  the  strict  rule  requiring  personal  service  of 
notice,  is  perhaps  more  apparent  in  the  notice  of  appeal  than 
in  any  other.  Were  it  not  for  the  fact  that  some  other  mode 
than  personal  delivery  of  a  written  notice  to  the  appellee  is 
provided  by  the  statutes  of  the  different  states,  the  courts 
would,  in  cases  where  personal  service  was  impossible,  be 
inclined  to  look  favorably  upon  the  substitution  of  such  other 

'  See  Voor.  Code  (1864),  §  371 ;  also  g§  353,  354,  note. 
'  Younghaus  v.  Fingar,  63  Barb.,  299;  S.  C  ,  47  N.  Y.,  99;  Bixby  c.  War- 
den, 46  How.  Pr.,  239. 

^  Mott  v.  Lansing,  5  Lans.,  516. 
<Columbet  ».  Pacbeco,  46  Cal.,  650. 
'  Code  Prac.  Nortb  Carolina,  ^  535. 
•Marsb  v.  Coben,  68  N.  C,  283. 


NOTICE    OF    APPEAL.  517 

modes  as  were  prescribed  in  analogous  cases.  Otlierwise  a 
party  who  had  succeeded  in  obtaining  an  unjust  judgment, 
might,  bj  avoiding  personal  service  of  notice,  entirely  defeat 
the  right  of  appeal. 

§  1218.  Notice  to  be  Given  to  Co-Parties.  —  It  is  not  always 
sufficient  to  give  notice  of  appeal  to  the  opposite  party.  The 
interests  of  a  co-plaintiff  or  co-defendant  may  be  adverse  to 
those  of  the  party  who  complains  of  error  in  the  judgment  ; 
in  which  event  it  is  incumbent  upon  the  party  appealing  to 
give  notice  of  such  appeal  to  such  co-plaintiff  or  co-defendant.^ 

§1219.  Does  not  Depend  upon  Conflict  of  Interest. — This  rule 
of  practice  is  of  more  general  application  than  that  requiring 
notice  of  appeal  to  the  opposite  party,  and  does  not  depend 
upon  the  existence  of  a  conflict  of  interests  between  co-pai*- 
ties.  In  the  Supreme  Court  of  the  United  States,  it  was  for- 
merly required,  when  one  or  more  of  the  vanquished  parties 
desired  to  appeal  or  sue  out  a  writ  of  error,  that  a  summons 
should  be  served  upon  those  who  were  willing  to  abide  the 
judgment,  and  have  a  severance;  but  latterly  there  has  been 
adopted,  as  a  substitute  for  such  summons  and  severance^  the 
service  of  a  written  notice  upon  such  parties.  And  the  mere 
allegation  of  the  appellant,  in  his  petition,  that  his  co-parties 
failed  to  appear  or  refused  to  join,  will  not  be  sullicient.  The 
record  should  sliow  due  service  of  notice  upon  tlie  parties,  or 
that  they  appeared  and  refused  to  join  in  the  appeal,  and  that 
the  court  granted  an  appeal  to  the  party  who  prayed  for  it,  as 
to  his  own  interest.^ 

1  Hiscock  '0.  Phelps,  2  Lans.  (N.  Y.),  106. 

^  Masterson  «.  Ilerndon,  10  Wall.,  416.  See,  also,  as  to  statutory  ]irovis- 
iou  on  the  same  subject,  iu  the  State  of  Indiana,  3  G.  &  H,,  270,  J$  551.  If 
any  question  can  be  said  to  he  "settled"  by  numerous  dLcisions,  tlie  con- 
struction of  this  st-atute,  requiring  notice  from  an  app;  lla:it  to  his  co-parties, 
may  be  considered  at  rest  in  that  stale.  The  appeal  has  been  uniformly 
dismissed  where  notice  was  neglected.  Knar  v.  Conway,  37  Ind.,  257;  Pitts- 
burgh &  C.  R.  R.  Co.  -y.  Elliott,  38  Ind  ,  158 ;  Id.,  183 ;  Id.,  226 ;  Id.,  266;  Jd, 
589 ;  Id.,  427 ;  39  Ind.,  244 ;  Id.,  393 ;  Id.,  474  -,  40  Ind.,  142 ;  Id.,  195  •  Id.,  341 ; 
41  Ind.,  144;  Id.,  277;  42  Ind  ,  386;  /7.,  399;  Id.,  477;  Id.,  497;  43  Ind.,  1;' 
U.,  472;  /d.,380;  Id.,  381;  /rf.,  29. 


51 S  PRACTICE   AND    PLEADING. 

§  1220.  Waived  by  Appearance.  — -  Where,  however,  one  of 
several  co-plaintiffs  or  co-defendants  appeals,  and  the  others 
appear  and  refuse  to  join,  this  renders  notice  to  them  unnec- 
essary, under  the  rule  that  a  voluntary  appearance  of  a  party 
entitled  to  notice  amounts  to  a  waiver  of  such  notice.'  Accord- 
ing to  the  same  rule,  the  voluntary  appearance  of  the  appellee 
is  regarded  as  a  waiver  of  tlie  notice  of  appeal,  where  such 
notice  is  required.^ 


V.  Notice  of  Taking  Depositions. 

§1221.  When  Required. 

1222.  Generally  in  Writing. 

1223.  What  to  Contain. 

1224.  Deemed  Sufficient. 

1225.  Clerical  Errors. 

1226.  Name  of  Officer. 

1227.  Witnesses  Need  not  all  be  Namea. 

1228.  Conditional  Notice  Insufficient. 

1229.  Must  be  Signed. 

1230.  Time  of  Taking. 

1231.  Mistake  in  Date  of  Taking. 

1232.  General  Requisites. 

1233.  Time  of  Service. 

1234.  Time  Decided  by  Court. 

1235.  Computation  of  Time  and  Distance. 

1236.  Absence  of  Statute  or  Rule. 

1237.  Time  not  always  Governed  by  Distance. 

1238.  Time  not  Fixed  by  Special  Circumstances. 

1239.  Except  ■when  Unusually  Short. 

1240.  Statutory  Time  may  be  Shortened. 

1241.  Objections  to  Timy— When  Taken. 

1242.  Party  must  show  Himself  Entitled  to  Time. 

1243.  Service  of  Notice. 

'  Rich  V.  Starbuck,  45  Ind.,  310. 

*  But  though  consent  may  waive  error  or  irregularity  in  giving  the  notice, 
where  it  is  necessary  to  the  jurisdiction  of  the  appellate  court,  such  juris- 
diction cannot  be  conferred  by  waiver  of  notice.  Oliver  v.  Harvc}',  5  Oreg., 
860. 


TAKING   DEPOSITIONS.  619 

1244    Insufficient  Service. 

1245.  Upon  Several  Co-Parties. 

1246.  Strict  Personal  Service  not  Required. 

1247.  Proof  of  Service. 

1248.  Upon  Attorneys  in  Partnership. 

1249.  When  Depositions  to  be  Used  in  Two  Cases. 

1250.  Postponement  by  Consent. 

1251.  Effect  of  Acknowledgment  of  Service. 

1252.  Alteration  of  Notice. 

1253.  Objections  Waived. 

1254.  Waiver  by  Presence. 

1255.  May  be  Present  without  Waiver. 

1256.  Effect  of  Adjournment  without  Consent 

§1221.  When  Required. — When  for  any  purpose  one  of  the 
parties  to  a  suit  desires  to  take  the  testimony  of  a  witness  in 
writing,  to  be  used  npon  the  trial,  in  lieu  of  his  oral  testimony, 
whether  it  be  to  perpetuate  such  testimony,  against  the  possi- 
bilities of  the  death  or  absence  of  such  witness,  or  to  obtain  evi- 
dence where  the  witness  is  beyond  the  reach  of  a  supcena  testifi- 
candum, issuing  out  of  the  court  where  the  suit  is  pending,  it 
is  necessary  to  serve  the  opposite  party  or  his  attorney  with  due 
and  timely  notice  of  the  taking  of  such  deposition,  otherwise 
it  may  be  suppressed  on  motion,  or  in  any  event,  will  not  be 
permitted  to  be  offered  in  evidence,  unless  such  notice  has  been 
waived  by  the  party  against  whom  the  deposition  is  offered.' 
And  it  will  be  no  answer  to  a  motion  to  suppress  a  deposition 
for  the  want  of  notice,  that  the  witness  has  since  deceased,  and 
unless  the  deposition  is  admitted,  his  testimony  will  be  utterly 

l08t.2 

§1222.  Generally  in  Writing.  — As  a  general  rule  the  notice 
is  required  either  by  statute  or  rule  of  court  to  be  in  writing; 
but  in  the  absence  of  such  statute  or  rule  verbal  notice  will  be 
sufKcient,  especially  where  notice  is  not  denied.^  And  where 
a  party  verbally  agreed  with  the  opposite  party  to  the  suit,  upon 

'Ellis  V.  Jaszynsky,  5  Cal.,  444;   Garnett  «.  Yoe,  17  Ala.,  74;  Foster  c. 
Smith,  2  Cold.  (Tenn.),  474;  Briggs  v.  Green,  33  Vt ,  565. 
■'  Perry  v  Siter,  37  Mo.,  273. 
'Milton  V.  Rowland,  11  Ala,,  732. 


520  PRACTICE    AND    TLEADING. 

the  time  find  place  of  taking  depositions,  and  a  deposition  was,  in 
pursuance  of  such  agreement,  taken  bj  one  of  the  parties  in  the 
absence  of  the  otlier,  the  party  failing  to  attend  was  not  per- 
mitted to  repudiate  the  agreement,  and  object  to  tlie  deposition 
upon  the  ground  that  he  had  not  been  notified  of  the  taking 
thereof.'  AV^here,  however,  the  statute  required  the  notice  to  be 
in  writing,  it  was  held  though  the  court  might  order  a  deposi- 
tion to  be  taken  durii:ig  the  trial,  and  upon  such  notice  as 
to  time  as  seemed  reasonable,  that,  nevertheless,  the  written 
notice  prescribed  by  statute  could  not  be  dispensed  with.^ 

§  1223.  What  to  Contain. — As  to  what  the  notice  shall  contain, 
no  precise  rule  can  be  laid  down  which  will  be  found  univer- 
sally applicable.  The  matter  being  regulated  by  statute,  in 
some  of  the  states  the  notice  is  required  to  contain  a  much 
fuller  statement  than  in  others.  But  there  is  probably  no 
exception  to  the  rule  requiring  the  notice  to  indicate  with 
reasonable  certainty  the  time  and  place  of  taking  the  deposi- 
tions, and  also  the  particular  actions  in  which  the  same  are 
intended  to  be  used.-^ 

§  1224.  Deemed  SnfMcient.  —  Where,  however,  the  notice  was 
to  take  the  deposition  on  a  given  day,  at  an  hour  mentioned, 
"at  the  house  of  W.  P.  (the  witness) to  be  read  in  evidence  in 
a  case  now  pending  in  the  superior  court  of  law  for  the  said 
county,  wherein  lam  plaintiflt' and  you  are  defendant,"  though 
the  county  in  which  said  witness  resided,  and  the  suit  was 
pending,  was  not  mentioned,  there  being  no  evidence  that 
there  was  any  other  "W.  P."  or  any  other  suit  between  the 
parties  than  the  one  on  trial,  the  notice  was  held  sufticient.'* 

§1225.  Clerical  Errors.  —  So  where  there  is  a  clerical  error 
m  writing  the  name  of  the  place  where  the  depositions  are  to 
be  taken,  if  in  the  o]^inion  of  the  court  such  mistake  is  not 
misleading,  the  deposition  should  be  received.''     Especially  if 

'  Ormsby  o.  Town  of  Granby,  48  Vt.,  44. 

M)uaiiing  v.  Foster,  42  N.  H.,  165;  Cater  v.  M'Dauiel,  31  N.  H.,  331. 

'  Kingsbury  v.  Smith,  1:}  N.  H.,  109. 

^Ovvons  V.  Kiusey,  6  .loaes  Law  (N.  C),  33. 

'  Gibson  v.  Gibson,  20  Poun.  St ,  !). 


TAKING    DEPOSITIONS.  521 

there  be  other  descriptive  terms  in  the  notice,  less  likely  to  be 
mistaken.^  So  also  where  the  case  was  wrongly  entitled,  but 
not  so  as  to  mislead  the  opposite  party's  attorney,  who  knew 
the  case  intended  by  the  notice,  and  knew  the  witnesses  to  be 
examined,  and  signified  his  intention  to  be  present  at  the 
examination,  the  notice  was  held  sufficient.^ 

§  1226.  Name  of  Officer.  —  In  general  it  is  unnecessary  to 
mention  the  name  of  the  officer  before  whom  the  deposition 
will  be  taken,  except  where  the  statute  interposes  this  require- 
ment;^ but  where  the  name  of  such  officer  is  required,  or  is 
given  merely  through  an  abundance  of  caution,  a  mistake  in 
writing  the  name,  as  where  it  was  rendered  "Storraer"  for 
"Stermer,"  it  not  appearing  that  there  were  two  justices  of 
those  names  in  the  county,  the  notice  w^as  held  sufficient.*  So 
where  the  Christian  name  of  the  commissioTier  was  omitted  in 
a  notice  of  a  rule  for  an  extra  territorial  commission,  the 
depositions  taken  under  such  commission  were  held  admissible, 
as  there  did  not  appear  to  be  another  commissioner  of  the  same 
name  in  the  place  where  the  depositions  were  taken,^  And 
where  the  name  of  the  commissioner  was  erroneously  substi- 
tuted for  that  of  the  witness,  the  mistake  was  held  immaterial, 
in  as  much  as  in  all  the  other  papers  the  names  were  correctly 
inserted,  so  that  the  opposite  party  could  not  be  misled.® 

§  1227.  AVitnesses  Need  not  all  be  Named.  —  Where  the  notice 
stated  that  the  depositions  of  several  witnesses — naming,  them 
— and  others,  were  to  be  taken,  and  the  witnesses  named  did 
not  depose,  but  the  evidence  of  others  was  taken  at  the  time 
and  place,  this  was  held  no  good  ground  for  excluding  such 
depositions.'*  In  fact  the  names  of  the  witnesses  are  not  gen- 
erally required  to  be  inserted  in  the  notice.^     But  in  a  case 

'  Piirsell  «.  Long,  7  .Jones  Law  (N.  C  ),  103. 

2  Mat  hew  v.  Dare,  20  Md.,  248. 

^Patlerson  v.  Hul»bard,  30  111.,  201. 

■»  County  of  Gretn  v.  Bleddoe,  12  111.,  207. 

Mvellum  V.  Smith,  89  Penn.  St.,  241. 

'  Eastnian  v.  Bennett,  G  Wis.,  2:52. 

'McDugald  y  Smith,  11  Ired.  (N.  C),  576. 

"lleatou  u.  Fiudlay,  12  Penn.  St.,  804;  Mamma  o.  McKce,  10  Iowa,  107. 


522  PEACTICE   AND    PLEADING. 

arising  under  a  statute  requiring  the  names  of  the  witnesses 
to  be  given,  a  notice  declaring  an  intention  to  take  the  deposi- 
tions of  such  person  or  persons  as  were  on  a  certain  day, 
mentioned  in  the  notice,  acting  tellers  or  cashiers  of  a  certain 
designated  bank,  this  notice  was  held  not  a  sufficient  identifi- 
cation of  the  witnesses  to  be  examined.^ 

§  1228.  Conditional  Notice  Insufficient.  —  Notice  that  a  deposi- 
tion in  chancery  proceedings  will  be  taken  conditionally^  lias 
been  held  insufficient  to  authorize  the  receipt  of  such  deposi- 
tion in  evidence.  The  intention  to  take  the  deposition  should 
be  expressed  in  absolute  terms.^ 

§  1229.  Must  be  Signed.  —  Another  feature  of  the  notice, 
which  would  only  be  neglected  or  omitted  through  carelessness 
or  negligence,  is  the  signature  of  the  party  or  attorney  by 
whom  it  is  given.  Of  course,  all  that  is  requisite  where  the 
notice  comes  directly  from  the  party,  is  that  it  shall  be  signed 
with  his  usual  signature.^  When,  however,  the  notice  is  given 
by  the  attorney,  that  fact  should  appear  from  the  signature; 
but  it  is  of  slight  importance  what  additions  are  made  to  the 
name  of  the  person  sending  the  notice,  or  what  is  omitted 
therefrom  which  might  with  propriety  be  added,  so  long  as 
the  notice  is  signed,  and  the  party  notified  understands  from 
the  signature,  from  whom,  or  in  whose  interest  the  notice  is 
given.'* 

§  1230.  Time  of  Taking.  —  The  notice  should  state  the  time 
of  taking  the  depositions,  with  reasonable  certainty,  both  as  to 
tlie  day  and  hour.  It  is  the  general  practice,  however,  to  fix 
the  time  between  certain  hours  of  the  day,  as  eight  o^cloch  in 
the  forenoon  and  five  o'^cloch  in  the  afternoon,  etc.  This 
latitude  as  to  hours  seems  necessary,  in  order  that  neither 
party  may  be  taken  entirely  by  surprise,  and  forestalled  of  his 
right  to  appear  and  examine  any  witnesses  produced  by  the 


'  Pilmer  v.  Branch  of  State  Bank,  16  Iowa,  321. 
»  Crittencleu  «.  Woodruff,  11  Ark.,  82. 
'  Bohn  V.  Devlin,  28  Mo.,  319. 
*  Clement  v.  Brooks,  13  N.  II.,  S2. 


TAKING    DEPOSITIONS.  523 

other;  but  as  to  the  day  of  taking  the  deposition,  less  hititiide 
is  allowable,  or  necessary.  In  general,  the  taking  should 
be  commenced  on  a  day  mentioned  in  the  notice,  though  it 
may  be  continued  through  several  days  until  finished.^  And 
where  the  notice  was  that  the  depositions  would  be  taken  on 
the  15th,  and  if  not  finished  on  the  15th,  then  on  the  16th, 
and  so  on  to  the  18th  of  the  month,  it  was  held  that  one  taken 
pursuant  to  such  notice  on  the  18th  was  properly  admitted 
against  the  objections  of  the  opposite  party,^  But  where  the 
notice  was  to  take  the  deposition  on  the  20th  and  21st,  one 
taken  on  the  21st  was  rejected.^  And  where  the  notice  in 
another  case  stated  that  the  deposition  would  be  taken  on  the 
4th,  5th,  and  6  th  days  of  the  month,  it  was  held  insufficient 
because  of  its  indefinite  statement  of  the  time  of  taking.^ 

§  1231.  Mistake  in  Date  of  Taking.  —  Clerical  mistakes  in 
stating  the  day  fixed  for  taking  the  deposition  will  be  governed 
by  the  same  liberal  rule  applied  to  other  casual  errors.  So 
where  the  date  fixed  by  the  notice  was  "Monday  the  26th," 
etc.,  and  the  deposition  noticed  was  taken  on  the  26th,  it  was 
held  properly  admissible,  though  the  26th  day  of  the  month 
did  not  fall  on  Monday.^ 

§  1232.  General  Requisites.  —  In  general,  a  notice  of  the  con- 
templated taking  of  depositions,  which  contains  a  clear  state- 
ment of  the  day  and  hour  of  taking,  the  name  of  the  city, 
town,  or  village,  and  the  house,  office  or  room,  designated  by 
number  or  other  certain  description,  where  they  are  to  be 
taken,  together  with  the  names  of  the  parties  between  whom 
the  suit  is  pending,  will  be  found  sufficient  to  entitle  such 
depositions  to  be  read  in  evidence.® 

§1233.  Time  of  Service.  —  An  important  matter  to  be  con- 
sidered in  determining  whether  a  notice  of  this  kind  is  suffi- 

'  Phillips  V.  Bowen,  2  Pu.  St.,  20. 

2  Thomas  v.  Davis,  7  B.  Mon.,  227. 

3  Jordan  v.  Hazard,  10  Ala.,  221. 

■»  Humphries  v.  McCraw,  9  Ark.,  91. 

"  Rand  v.  Dodge,  17  N.  H.,  U3. 

MJiiiuly  V.  Hyde,  50  N.  H.,  116;  Alexander  v.  Alexander,  5  Peun.  St.,  277. 


524:  rEACTICE    AND    PLEADING. 

cient,  is  whether  it  was  served  a  sufficient  time  before  the  day 
appointed  for  the  taking  of  depositions.  This  is,  in  many  of 
the  states,  settled  definitely  by  statute,  and  where  a  certain 
number  of  days  are  so  prescribed,  the  deposition  will  not  be 
admissible  against  the  opposite  party's  objections,  if  the  notice 
has  been  given  for  a  shorter  time.^ 

§  1234.  Time  Decided  by  Court.  —  But  all  statutes  regulating 
the  taking  of  depositions  are  not  so  definite  or  specific.  Bj 
the  employment  of  general  and  rather  indefinite  terms,  they 
throw  upon  the  courts  the  responsibility  of  deciding,  as  a 
question  of  law,  what  is  a  sufficient  time  for  a  notice  of  this 
kind.  As  where  the  party  proposing  to  take  the  deposition  is 
required  to  give  notice  in  a  reasonahle  time,  to  enable  the 
party  notified  to  appear  and  procure  the  attendance  of  counsel,^ 
the  courts  are  compelled  to  determine  what  is  a  reasonable 
time,  and  in  reaching  a  conclusion,  will  be  governed  by  the 
circumstances  of  each  particular  case.^  Even  less  definite,  if 
possible,  is  the  term,  "  due  notice,"  and  when  the  statute  is 
not  more  specific  in  prescribing  the  time  for  which  notice  is 
to  be  given,  the  determination  is  left  entirely  to  the  discretion 
of  the  court,  or  the  presiding  judge  thereof.^ 

§  1235.  Computation  of  Time  and  Distance.  —  And  even  where 
the  time  is  prescribed  by  statute,  it  must  necessarily  be  sub- 
ject to  variation,  according  to  the  distance  of  the  party's  resi- 
dence from  the  place  of  taking  the  deposition.^  This  casts 
upon  the  court  the  duty  of  deciding  between  various  routes  of 
travel,  by  which  the  distance  shall  be  reckoned.  Accordingly, 
it  was  held,  in  one  case,  where  the  statute  prescribed  three 
days'  notice,  with  an  additional  day  for  every  twent}^  miles  of 
travel  between  the  place  of  service  of  the  notice  and  the  place 
of  taking,  that,  though  by  river,  which  was  the  most  expedi- 

'  Travis  v.  Brown,  43  Peua.  St.,  9;  Congdon  v.  Anderson,  BO  111.,  95. 
5  Kirapton  v.  Glover,  41  Vt,  283 ;  Stephens  v.  Thompsou,  28  Vt.,  77 ;  Phelps 
V  Hunt,  40  Conn.,  97. 

^Atwood  V.  Fricot,  17  Cal.,  37. 
*  Harris  v.  Brown,  63  Me.,  51. 
«  Porter  v.  Pillsbury,  36  Me.,  278. 


TAKING   DEPOSITIONS.  525 

tious  mode  of  travel  between  the  two  points,  the  distance  was 
so  great  that  the  notice  would  be  for  too  short  a  time,  yet,  as 
by  the  usual  land  route  tlie  time  was  sufficient  to  allow  one 
day  additional  to  each  twenty  miles,  the  notice  ^vas  held  suffi- 
cient.^ Judicial  construction  has  even  been  found  necessary 
to  determine  what  was  meant  by  "ten  days'  notice."  In  one 
case,  it  was  held  to  mean  notice  received,  instead  of  notice  sent, 
ten  days  prior  to  the  taking.^  In  another,  it  was  held  that 
notice  on  the  fifth  of  the  month,  of  what  was  to  transpire  on 
the  fifteenth,  was  a  sufficient  compliance  with  the  rule  for  ten 
days'  notice  ;  the  time  being  computed  by  excluding  either 
the  first  or  the  last  day,  which  is  the  common  method.^  But 
where  six  days  were  required  for  thirty  miles,  notice  served  on 
the  twenty-first,  for  taking  on  the  twenty-sixth,  was  held  insuf- 
ficient.* Under  a  rule  for  taking  depositions  on  twenty  days' 
notice,  it  was  very  justly  held  that  such  rule  could  not  apply 
to  cases  where,  from  the  distance  between  the  place  of  trial 
and  the  place  of  taking,  it  would  be  physically  impossible  to 
travel  to  and  fro  between  the  points  within  that  time.^  In  the 
same  case,  it  was  held  that  forty-five  days  was  sufficient  time 
between  San  Francisco,  California,  and  the  State  of  New 
Hampshire. 

§  1236.  Absence  of  Statute  or  Rule.  —  "Where  there  is  no  stat- 
ute or  fixed  rule  allowing  so  many  days  for  so  many  miles,  the 
court  will  inquire  more  particularly  as  to  the  time  necessary  to 
travel  the  distance,  by  the  customary  routes  and  the  usual 
modes  of  travel,  than  as  to  the  number  of  miles  composing 
the  distance.  Accordingly,  it  was  decided  tliat  ten  days  w^ere 
sufficient  for  a  notice  to  take  depositions,  at  a  distance  of 
fifteen  hundred  miles  from  the  court,  when  it  w'as  shown  that 
the  entire  distance  could  be  traveled  in  six  daj's.®     So,  where 

'  Lindiiur  v.  Mutual  Safety  Insurance  Co.,  13  Ark.,  461. 

^Gooday  t.  Corlies,  1  Slrob.  (S.  C),  199. 

a  Arnold  c.  Nye,  23  Mich.,  28G. 

♦Richardson  ^.  Burlington  c"^  M.  R.  R.  R.  Co.,  8  Iowa,  2G0. 

'Gerrish  v.  Pike,  3G  N.  II.,  510. 

•  Carlisle  v.  Tuttle,  30  Ala.,  G13. 


526  PRACTICE    AND    PLEADING. 

the  usual  mode  of  travel  was  by  railroad,  the  court  took  judi- 
cial notice  of  that  fact,  and  thirty-six  hours  being  sufficient  for 
the  journey,  eight  days  were  held  amply  sufficient  for  the 
notice.^  For  the  same  reasons,  it  was  held,  in  the  same  state, 
that  nine  days'  notice  of  the  taking  of  depositions  in  the  city 
of  New  York  would  suffice  to  entitle  them  to  be  read  in  evi- 
dence on  a  trial  in  the  State  of  Indiana.^ 

§  1237.  Time  not  Always  Governed  by  Distance.  —  On  the  other 
hand,  the  mere  fact  that  the  distance  is  short  will  not  always 
abbreviate  the  time  required  for  notice,  so  that  the  time  and 
distance  will  bear  the  same  relation  to  each  other  as  when  the 
distance  is  longer.  In  fact,  the  distance  between  the  two  points 
is  only  to  be  considered  with  references  to  its  bearing  upon 
the  question  of  prime  importance,  whether  the  notice  is  given 
in  time  to  enable  the  party  notified  to  be  present  and  procure 
the  attendance  of  his  counsel.  For,  liowever  short  the  dis- 
tance may  be,  if  the  notice  is  not  given  in  time  enough  to 
afford  the  opposite  party  an  opportunity  to  attend  the  taking 
of  the  deposition,  it  will  be  held  insufficient.^ 

§  1233.  Time  not  Fixed  by  Special  Circumstances.  —  It  is  not 
intended  to  convey  the  idea  that  every  case  is  to  furnish  its 
own  rule,  and  be  governed  by  the  particular  circumstances 
affecting  the  conduct  of  the  parties.  The  time  will  not  be 
lengthened  or  shortened  to  suit  the  mere  convenience  of  the 
parties,  nor  will  the  interposition  of  unforeseen  obstacles  by 
which  the  party  notified  is  prevented  from  attending  the  taking, 
be  considered  as  entitling  him  to  further  time,  or  as  deciding 
what  length  of  time  was  necessary  in  the  particular  case,  and 
when  a  certain  day  and  hour  are  mentioned  in  the  notice, 
which  as  a  rule  would  prove  sufficient,  the  opposite  party  can- 
not claim  any  additional  time,  because  the  peculiar  exigencies 
of  his  situation  prevented  his  attendance.* 


^Hipes  ■».  Cochran,  13  Ind.,  175. 
**  Manning  v.  Gasharie,  27  Ind.,  399. 
'Fant  v.  Miller,  17  GraU.  (Va.),  187. 
*  Morril  n.  Moulton,  40  Vt.,  243. 


TAKING   DEPOSITIONS.  527 

§  1239.  Except  when  Unusually  Short.  —  Yet,  when  the  time 
is  very  short,  it  usually  requires  an  entire  absence  of  impedi- 
ments to  render  it  sufficient.  As,  where  the  notice  was  served 
during  the  afternoon  of  Saturday,  by  leaving  it  in  writing  at 
the  residence  of  the  plaintiff,  during  his  absence,  with  a  mem- 
ber of  his  family,  informing  him  that  the  deposition  would  be 
taken  on  the  following  Monday  at  the  hour  of  two  o'clock  in 
the  afternoon,  and  tlie  plaintiff  returned  home  on  Saturday 
evening  and  received  the  notice,  but  could  not  attend  without 
his  attorney,  who  was  engaged  elsewhere,  the  deposition  was 
suppressed  on  account  of  insufficient  notice.^  In  another  case, 
however,  where  the  notice  was  served  at  eight  o'clock  in  the 
evening,  of  the  taking  of  depositions  at  eight  o'clock  on  the 
morning  of  the  next  day,  the  parties  both  residing  in  the 
same  city  where  the  depositions  were  to  be  taken,  and  there 
appearing  no  special  reason  why  they  could  not  attend  on  the 
short  notice  given,  it  was  held  sufficient,  though  the  court  was 
in  session  at  the  time.^ 

§1240.  Statutory  Time  may  be  Shortened.  —  Under  the  Cali- 
fornia statute,  the  service  of  a  copy. of  an  order  of  court,  to 
appear  and  show  cause  why  a  commission  should  not  issue,  is 
sufficient  notice,  and  if  the  time  fixed  by  the  order  for  the 
party  to  appear  is  less  than  that  prescribed  by  statute  for  a 
notice,  it  is  equivalent  to  an  order  shortening  the  time,  whicli 
seems  to  be  within  the  scope  of  the  powers  of  the  court.^ 

§1241.  Objections  to  Time — When  Taken.  — It  is  sometimes 
maintained  that  any  objections  to  the  deposition,  on  account 
of  tlie  shortness  of  the  time,  should  be  taken  before  the  trial.* 
In  any  event,  they  should  be  interposed  before  the  deposition 
in  question  has  been  read  in  evidence.  Where,  however,  the 
objections  are  raised  by  the  attorney  of  the  party  at  the  taking 
of  the  deposition — he  appearing  for   that  purpose  only,  and 

'  Masters  v.  Warren,  27  Conn.,  293. 

*McGinnis  v.  Wti.sliington  Hall  Association,  12  Gratt.,  602. 

•Dambman  v.  White,  48  Cal.,  439. 

*  Cornelius  v.  Purtain,  39  Ala.,  473. 


528  PRACTICE    AND    PLEADING. 

refusing  to  cross-examine  witnesses,  there  is  no  doubt  but  that 
the  objections  are  timely,  and  if  well  taken,  the  deposition 
will  be  rejected.^ 

§  1242.  Party  must  Show  Himself  Entitled  to  Time.  —  Before  a 
motion  to  suppress  a  deposition  on  the  ground  of  insufficient 
time,  can  be  sustained,  the  party  objecting  must  show  affirma- 
tively that  he  was  fairly  entitled  to  the  time  of  which  he  claims 
to  have  been  wrongfully  de]3rived.-  Where  there  is  an  agi'ee- 
ment  between  parties  or  their  counsel,  to  take  depositions  on 
shorter  notice  than  that  prescribed  by  statute,  those  taken  in 
pursuance  of  such  arrangement,  may  be  read  in  evidence  as 
though  they  were  taken  upon  notice  for  the  statutory  time. 
But  whatever  the  agreement  or  understanding  between  the 
parties  may  be,  in  order  to  be  efiective,  it  must  be  faithfully 
carried  out.  It  was  accordingly  held,  where  an  agreement 
was  entered  into  between  counsel  to  take  depositions  on  one 
daj^'s  notice,  and  there  was  a  failure  to  give  the  notice  for  the 
time  agreed  upon  to  the  proper  party,  that  the  testimony  taken 
on  behalf  of  one  of  the  parties,  was  properly  ruled  out  on  the 
trial.3 

§  1243.  Service  of  Notice.  —  It  is  important  to  know  in  eveiy 
instance  that  the  notice  was  addressed  to  the  proper  party,  and 
was  properly  served.  This  is  one  of  those  notices  which  may 
with  peculiar  propriety  be  served  upon  the  attorney  of  record 
of  the  opposite  party.^  But  when  so  serv^ed,  it  should  be  a 
sufficient  time  before  the  taking,  to  give  the  attorney  an  oppor- 
tunity to  communicate  with  his  client.^  It  has  even  been  held 
that  the  notice  might  be  served  upon  the  attorney,  after  infor- 
mation received  that  he  had  retired  from  the  case,  and  it 
would  be  sufficient  to  charge  the  opposite  party  with  notice 
of  the  taking  of  the  deposition,^  but  this  cannot  be  regarded 
as  justifying  the  service  of  notice  upon  one,  merely  because 

'  Beasley  v.  Downey,  10  Ired.,  284. 

'■'  Adams  v.  Peck,  4  Iowa,  551. 

3  Bohr  V.  Steamboat  Baton  Rouge,  7  Sm.  &  M.,  715. 

♦Bailey  v.  Wright,  24  Ark.,  73;  Hunt  v.  Crane,  33  Miss.,  669. 

5  Hunt  V.  Crane,  33  Miss  ,  G69. 

« Hcrriu  v.  Libbey,  30  Me.,  350. 


TAKING    DEPOSITIONS.  529 

of  his  antecedent  engagement  as  attorney  in  the  case,  where 
he  has  not  only  retired,  but  had  the  fact  of  his  retirement 
properly  entered  upon  the  records  of  the  court.  Tlie  only 
instance  in  which  it  would  be  proper  to  serve,  such  a  notice 
upon  an  attorney  after  the  cessation  of  his  active  connection 
with  the  suit,  would  be  where  he  still  remained  the  attorney  of 
record,  awaiting  the  substitution  of  another  in  his  stead.  It 
is  not  essential  at  all  times  that  the  attorney  of  record  should 
be  served,  xls  where  the  notice  of  retainer  and  the  answer 
were  filed  by  one  attorney,  and  the  trial  was  conducted  through- 
out by  another,  who  had  never  been  formally  substituted  as 
attorney  of  record,  the  notice  was  held  properly  served  upon 
the  latter.^ 

§  1244.  Insufficient  Service.  —  Where  the  notice  was  served 
upon  one,  neither  an  attorney  of  record  in  the  case,  nor  an 
adverse  party,  the  deposition  was  held  inadmissible.^  Service 
upon  the  attorney  is  regarded  as  sufficient,  only  when  there 
is  no  statute  or  rule  of  court  requiring  personal  service  upon 
the  party.  It  was  accordingly  held,  where  the  rules  provided 
for  service  upon  the  attorney,  except  where  the  statute  or 
"  these  rules "  directed  otherwise,  and  there  was  an  old  rule 
requiring  the  notice  to  be  served  upon  the  opposite  party,  that 
the  notice  served  upon  the  attorney  was  insufiicient.^ 

§  1245.  Upon  Several  Co-Parties.  —  As  to  the  manner  of 
serving  several  co-parties,  interested  adversely  to  the  party 
giving  notice,  the  authorities  are  not  in  perfect  accord,  it  being 
held  that  service  upon  one  of  such  parties  will  be  sulficient 
notice  to  all,^  while,  on  the  other  hand,  it  has  been  decided  that 
a  deposition  cannot  be  offered  in  evidence  against  one  of  two 
ioint  defendants  who  has  not  been  notified,  merely  because  his 
co-defendant  has  been  duly  served  with  notice  of  the  taking.^ 


'  King  V.  Kitchic,  18  Wis.,  554. 

»  Brown  v.  Ford,  52  Me.,  479. 

•■'  Fleming  v.  Beck,  48  Penn.  8t.,  ;309. 

'Spanieling  v.  Ludlow  &c.  Mill,%  Vt.,  150;  Ellis  v.  Lull,  45  N.  H.,  419. 

'McConnell  v.  Slettinius,  7  111., 707. 

34 


530  PKACTICE    AND    PLEADING. 

In  the  case  of  Spaiilding  v.  Ludlow,  &c.,  Mill,'  the  rule  is 
declared  with  the  qualification,  that  good  faith  should  be  used 
in  selecting  the  one  to  be  served,  so  that  the  interests  of  all 
may  be  protected.  The  case  of  Ellis  v.  Lull,^  is  decided  under 
a  statute  expressly  providing  that  service  shall  "be  upon  the 
op].)osite  party,  or  one  of  them.''''  It  may  be  held,  where  the 
adverse  parties  sustain  toward  each  other  relations  of  a  pecul- 
iarly intimate  character,  as  that  of  husband  and  wife,  part- 
nership, etc.,  that  service  upon  one  is  equivalent  to  service 
upon  both  or  all;  but  it  is  diflBcult  to  understand  why  the  mere 
fact  that  several  persons  have  been  joined  as  parties  defendant 
in  the  same  suit,  should  establish  such  a  close  connection 
between  them  that  they  are  supposed  to  communicate  to  each 
other  every  fact  in  relation  to  the  controversy,  coming  to  their 
knowledge.  The  depositions  to  be  taken  may  be  offered  as  evi- 
dence of  facts  of  very  little  or  no  interest  whatever,  to  the 
party  notified,  while  the  evidence  thus  produced  would  be  fatal 
to  tlie  defense  of  the  party  who  was  left  in  ignorance  of  taking 
them.  But  when  there  has  been  a  failure  to  notify  one  of 
several  joint  plaintiffs  or  defendants  it  seems  quite  clear  that 
liL  alone  can  urge  such  failure  in  support  of  an  objection  to 
the  deposition  when  offered  in  evidence.^ 

§  1246.  Strict  Personal  Service  not  Required.  —  Generally 
notices  of  this  kind  do  not  require  strict  personal  service, 
either  upon  the  party  or  his  attorney.  Even  where  the  stat- 
ute has  not  prescribed  the  mode  of  service  otherwise  than  by 
personal  delivery,  it  is  sometimes  held,  on  the  authority  of 
analogous  cases,  that  it  nuiy  be  properly  served  by  leaving  it 
with  some  one  at  the  place  of  business  or  residence  of  the  party 
or  his  attorney.^  But  where  the  statute  required  that  notice 
should  be  "  served  on  the  adverse  party  or  his  attorney,  as 
either  may  be  nearest,"  &c.,  it  was  held  not  to  be  a  sufficient 

'  Supra. 
■^  Supra. 

^  Glenn  v.  Glenn,  17  Iowa,  498 ;  Infra,  55 1349. 

'Goodloe  ».  Baitlett,  5  McLean,  18();  Pralher  v.  PriU-liard.  2(i  Ind.,  65; 
Merril  o.  Dawson,  1  Hemp.,  060. 


TAKING    DEPOSITIONS.  531 

compliance  to  leave  such  notice  at  the  usual  place  of  abode  ot 
either,  with  any  one  other  than  the  party  or  his  attorney.^ 

§  1247.  Proof  of  Service.  —  The  best  evidence,  and  that,  in 
fact,  which  is  generally  prescribed,  either  by  statute  or  rule  of 
court,  of  the  service  of  notice,  is  the  notice  itself,  or  a  prop- 
erly authenticated  copy  thereof,  attached  to  and  enclosed  with 
the  deposition,^  and  the  deposition  must  show  upon  its  face 
that  it  was  taken  at  the  time  and  place  mentioned  in  the 
notice.^  Parol  proof,  however,  of  the  service  of  notice  has 
been  held  sufficient,* 

§  1248.  Upon  Attorneys  hi  Partnership.  —  When  the  notice  is 
addressed  to  attorney's  at  law  by  their  firm  name,  they  appear- 
ing by  the  record  to  be  attorneys  in  the  case,  it  is  not  neces- 
sary that  the  return  on  the  notice,  where  it  is  served  by  the 
sheriff,  should  contain  the  statement  that  they  are  such  attor- 
neys, or  that  they  were  served  in  that  capacity.  And  when 
the  notice  appears  to  have  been  delivered  to  a  person  bearing 
the  same  name  as  one  of  the  partners,  it  will  be  sufficient. 
The  court  will  take  judicial  notice  that  they  are  the  attorneys 
of  record,  and  it  will  be  presumed  that  they  were  notified  of 
the  intention  to  take  depositions,  in  the  capacity  in  which  they 
filed  the  declaration.  It  will  also  be  presumed  that,  in  making 
the  service,  the  officer  did  his  duty,  and  consequently  that  the 
person  served  as  a  member  of  such  firm  was  one  of  the  part- 
ners.^ 

§  1249.  Wlien  Depositions  to  be  Used  in  Two  Cases.  —  Where 
notice  was  given  of  the  intention  to  use  the  deposition  to  be 
taken,  in  two  separate  actions,  pending  at  the  same  time  in  the 
same  court,  it  was  held  sufficient  to  authorize  the  reading  of 
tiie  deposition  in  both  suits,^  but  where  there  are  different  par- 
ties to  the  suits,  though  both  are  concerning  the  same  subject 

'  Carri ii<j;ton  v.  Slimson,  1  Curtis  Ct.  Ct,  437. 

'  Carlton  v.  Patterson,  2!»  N.  II.,  580. 

3  YouniT  V.  Mackall,  4  Md.,  362. 

•Pickard  v.  Polhiinus,  3  Midi.,  185. 

'  Keese  v.  Beck,  34  Ala  ,  Oal. 

"  Scott  V.  Bullion  Mining  Co.,  2  Nov.,  81. 


632  PRACTICE    AND    PLEADING. 

matter,  the  deposition  will  not  be  received  in  evidence  against 
a  party  who  has  not  been  notified,  and  had  an  opportunity  to 
be  present  and  cross-examine  the  witnesses.^  Where,  however, 
the  testimony  is  taken  under  a  notice  entitled  in  two  actions, 
between  the  same  parties,  it  will  be  presumed,  in  tlie  absence 
of  any  showing  to  the  contrary,  that  they  were  upon  the  same 
matter,  and  that  no  substantial  rights  have  been  affected  by 
giving  one  notice  of  taking  depositions  for  both  cases.'^ 

§1250.  Postponement  by  Consent.  —  As  important  as  is  the 
.  observance  of  the  day  and  hour  indicated  by  the  notice,  the 
deposition  may  be  taken  on  a  subsequent  day,  or  between 
other  hours,  when  botli  parties  appear,  either  in  person  or  by 
attorney,  at  the  time  indicated,  and  consent  to  a  postponement; 
but  in  order  that  the  deposition  may  be  admissible  in  evidence 
against  objections  from  the  opposite  part}^,  the  certificate  of 
the  officer  before  whom  it  was  taken,  that  the  examination  was 
postponed  by  consent,  is  necessary.^ 

§1251.  Effect  of  Acknowledgment  of  Service.  —  Even  where, 
by  statute  or  rule  of  court,  a  certain  time  is  fixed  for  the 
notice,  such  time  may  be  abbreviated  by  consent  of  the  parties 
or  their  counsel,  by  a  written  acknowledgment  of  due  service 
indorsed  upon  the  notice  or  interrogatories,  or  written  upon  a 
separate  paper,  which  indicates  with  certainty  tlie  suit  in  which 
the  deposition  is  to  be  used.*  So,  where  the  notice  was  sent 
by  mail,  addressed  to  the  attorney  of  the  opposite  party,  and 
in  due  time  was  returned  bearing  an  admission  of  notice 
indorsed  thereon,  which  was  acted  upon  under  the  belief  that 
it  was  signed  b}^  authority  of  the  attorney,  it  was  held  that  a 
motion  to  suppress  the  deposition  for  the  want  of  notice,  it 
appearing  that  the  attorney  was  absent  on  receipt  of  the  notice, 
and  the  same  was  acknowledged  by  his  sou  and  law  partner, 
was  properl}'  overruled  by  the  trial  court. ^ 

'  Rutheribrd  v.  Geddes,  4  Wall.,  220. 
'  Laithe  v.  McDonald,  7  Kans.,  254. 
'LewliiB.  Dille,  17  Mo.,  64. 

*  Cherry  v.  Baker,  17  Md.,  75 ;  Scott  v.  Scott,  lb.,  78 ;  Atwood  v.  Fricot,  17 
Cal.,  37;  Moore  v.  Gammel,  13  Tex.,  120. 
'Brown  v.  Clement,  68  111.,  192. 


TAKING    DEPOSITIONS.  533 

§  1252.  Alteration  of  Notice.  —  The  deposition  may  be  o}»en 
to  objection  on  acconnt  of  alterations  made  in  the  notice  al'fer 
service;  but  where  an  alteration  appears  on  the  face  of  the 
notice  attached  to  the  deposition,  it  will  not  be  presumed  to 
have  been  made  after  service.^ 

§1253.  Objections  Waived. — All  objections,  however,  to  the 
notice  for  insufficiency  of  statement,  defective  service,  or  even 
the  entire  absence  of  notice,  may  be  waived  by  the  party 
entitled  thereto,  by  appearance  in  person  or  b}''  attorney,  at  the 
taking  of  the  deposition,  and  cross  examination  of  the  wit- 
nesses, without  raising  the  objection  then  and  there.^  In  any 
event,  the  objection  that  no  notice  was  served,  cannot  be  raised 
for  the  first  time  in  the  appellate  court.^  So,  the  filing  of 
cross-interrogatories,  without  objection,  has  been  held  to  be  a 
waiver  of  objections  to  the  notice,  on  account  of  irregularities? 
whether  relating  to  its  contents  or  manner  of  service.^ 

§  1254.  Waiver  by  Presence.  —  The  mere  presence  of  the 
party  or  his  attorney,  at  the  taking  of  the  deposition,  seems  in 
some  instances  to  have  been  taken  as  a  sufficient  waiver  of  the 
objection  that  notice  was  entirely  wanting.''  AVhere  the  a})pear- 
ance  of  the  party,  against  whom  the  deposition  is  to  be  used, 
is  certified  to  by  the  officer  in  such  a  manner  as  to  leave  no 
doubt  that  he  was  present,  acquiescing  in  tlie  taking  of  the 
same,  this  would  probably  be  regarded  as  sufficient  evidence 
of  a  waiver;  but  where  his  presence  is  noticed  in  the  certificate, 
in  connection  with  the  fnrther  fact  that  he  refuses  to  recognize 
the  validity  of  the  examination,  by  word  or  deed,  such  appear- 


»  Davis  V.  Davis,  48  Vt.,  502. 

'Aicardi  v.  Strang,  38  Ala.,  :52G;  County  of  Greene®.  Bledsoe,  13  111.,  267; 
McCormack  v.  Irwin,  li")  Ponn.  St.,  Ill;  Nevan  ».  Roup,  8  Iowa, 207;  Jones 
V.  Love,  9  Cal.,  68;  Doe  v.  Brown,  8  Blackf.,  443;  Caldwell  v.  Mo  Vicar,  9 
Ark.,  418. 

'Dill  t;.  Camp,  22  Ala.,  249. 

*  Aicardi  v.  Strang,  38  Ala.,  326. 

'Milton  V.  Rowland,  11  Ala.,  732;  State  v.  Bassett,  33  N.  J.  L.,  26; 
(;rooker  v.  A\^p\eUm,  25  Me.,  131 ;  Pres't.,  &c.,  of  Connersville  v.  Woodleigh, 
7  Blackf.,  102. 


534  PRACTICE    AND    PLEADING. 

ance  can  hardly  be  construed  into  a  waiver  of  objections  to 
antecedent  irregularities. 

§  1255.  3Iay  be  Present  without  Waiver. — Even  where  the  at- 
torney appearing  for  the  party  entitled  to  notice,  cross-examines 
the  witnesses  produced  by  his  adversary,  this  of  itself  will  not 
amount  to  a  waiver  of  the  objection  that  notice  was  not  given 
a  sulRcient  time  before  taking  the  deposition,  when  the  attor- 
ned' appearing,  does  so  under  protest  and  with  an  express 
reservation  of  the  right  of  his  client  to  object  to  the  deposition 
at  the  trial,  for  the  want  of  notice.  The  time  given  is  not 
intended  alone,  for  a^oino-and  coraino'  between  the  residence  of 
the  party  notified  and  the  place  of  caption,  but  for  consultation 
and  preparation.  The  party  is  not  obliged  to  forbear  attending- 
the  examination.  It  is  impossible  for  him  to  say  whether  the 
deposition  will  be  admitted  or  not,  against  his  objection.  It 
may  turn  out  during  the  taking  of  the  deposition,  that  not- 
withstanding the  shortness  of  the  notice,  it  is  sufficient  to 
enable  him  to  cross-examine  intelligently,  so  that  he  may  not 
desire  to  object.  But  having  reserved  his  rights,  by  a  formal 
objection  to  the  taking  of  the  deposition,  he  forfeits  none  of 
them,  by  remaining  during  the  examination,  and  even  cross- 
examining  the  witnesses.* 

§1256.  Eifeet  of  Adjournment  without  Consent. — It  was  held 
in  a  case  where  the  party  notified  was  present  with  his  attorney 
at  the  hour  named  in  the  notice,  and  waited  until  he  was 
informed  by  the  officer  that  the  hour  had  expired,  when  he 
discharged  his  attorney  and  retired,  the  sender  of  the  notice 
having  telegraphed  for  an  adjournment  to  a  later  hour,  and, 
arriving  after  the  adjournment,  notified  the  opposite  party  of 
the  hour  to  which  the  taking  was  adjoui-ned,  that  such  party 
failing  and  refusing  to  appear  in  recognition  of  the  validity  of 
the  second  notice,  might  object  to  the  admission  of  the  deposi- 
tion at  the  trial,  and  such  objection  would  be  sustained.^ 


'  Hunt  V.  Lowell,  etc.,  Co..  1  Allen,  ;?48. 
*  Hennessey  v.  Stewart,  31  Vt.,  486. 


NOTICE    TO    PRODUCE    BOOKS    AND    PAPERS.  536 


YI.  Notice  to  Pkoduce  Books  and  Papers. 

§  1257.  General  Remarks. 

1258.  Necessary  to  the  Admission  of  Secondary  Evidence. 

1259.  Demand  before  Suit  not  Sufficient. 

1260.  Necessary  when  Paper  Recorded. 

1261.  Rule  same  in  Criminal  Prosecution. 

1262.  Exceptions. 

1263.  In  Action  of  Trover — Unnecessary. 

1264.  Assumpsit — Unnecessary. 

1265.  Debt  on  Bond — Unnecessaiy. 

1266.  Action  of  Covenant — Unnecessary. 

1267.  Against  Constable  for  Failing  to  make  Return — Unnecessary. 

1268.  Papers  Filed,  or  Mentioned  in  Pleadings. 

1269.  Papers  in  Court. 

1270.  Paper  must  be  Traced  to  Opposite  Party. 

1271.  Proof  of  Possession  from  Circumstances. 

1272.  Papers  under  Control  of  Adversary. 

1273.  Privity  must  be  Clearly  Established. 

1274.  Paper  Passed  out  of  Parties'  Possession. 

1275.  May  Impeach  CopJ^ 

1276.  Not  by  Introduction  of  Original. 

1277.  Secondary  Evidence,  even  when  Possession  Disproved. 

1278.  Must  be  proved  when  Produced. 

1279.  Need  not  be  Oilered  when  Produced. 

1280.  Inference  Drawn  from  Failure  to  Produce. 

1281.  Notice  to  Produce  Notice — Unnecessary. 

1282.  Contents  of  Notice. 

1283.  Should  not  be  too  (General. 

1284.  Generally  in  Writing. 

1285.  Renewal  Unnecessary  in  Case  of  Continuance. 

1286.  Time  of  Notice. 

1287.  Served  at  Trial,  too  Late. 

1288.  Party  not  Recjuired  to  Incur  Expense. 

1289.  Original  not  in  Existence. 

1290.  Opposite  Attorney  in  Possession  of  Paper. 

1291.  One  of  Several  .Joint  J^arties. 

1292.  Personal  Service  not  Iiulispensablc 

§1257.  General  Remarks. —  When  iitact  to  be  established  on 
the    trial    is    evidenced    hy    a   written    or  printed   document 


636  PRACTICE    AND    PLKADINOr. 

whether  it  be  a  book,  ineuioranduin  of  agreement,  promissory 
note  or  specialty,  the  rule  i-equiring  the  best  attainable  evidence 
of  tlie  matter  in  issue  is  applied,  and  the  original  of  the  writ- 
ing must  be  offered  if  obtainable.  It  is  in  general  only  when 
the  original  is  beyond  the  reach  of  the  party  offering  the  evi- 
dence, that  a  copy,  or  parol  testimony  of  its  contents  may  be 
substituted  for  the  highest  grade  of  evidence.^  It  is  not  alone 
the  loss  or  destruction  of  the  document,  that  will  place  it  be- 
yond the  reach  of  the  party  desiring  to  offer  it.  The  opposite 
party  may  have  it  in  his  possession,  in  which  event  a  notice  to 
him  to  produce  the  instrument  at  the  trial,  will  have  the  effect 
to  bring  it  to  light,  or  failing  in  this,  will  entitle  the  party 
calling  for  the  document,  to  introduce  secondary  evidence  of 
its  contents.'^ 

§  1258.  Necessary  to  the  Admission  of  Secondary  Evidence. — Gen- 
erally, secondary  evidence  of  the  contents  of  books  and  papers 
in  the  hands  of  the  opposite  party,  cannot  be  given,  without  rea- 
sonable notice  to  produce  the  originals.  As  where,  in  an  action 
on  account,  defendant  offered  in  evidence  a  receipt,  which 
plaintiff  testified  was  originally  attached  to  a  letter,  a  sworn 
copy  of  which  he  offered  in  evidence  without  a  previous  notice 
to  produce  the  original,  it  was  held  error  to  receive  such  second- 
ary evidence.^  So  where  suit  was  brought  upon  an  agree- 
ment, the  written  memorandum  of  which  was  in  the  hands  of 
the  other  party,  a  copy  of  such  agreement  was  held  incompe- 
tent to  prove  its  contents  without  a  previous  notice  to  produce 

'United  States  v.  Winchester,  3  McLean,  135;  Potier  v.  Barclay,  15  Ala., 
439;  Anderson  Bridge  Co.  v.  AppU^gate,  13  Ind.,  389;  Williams  v.  Benton, 
13  La.  An.,  91;  Farmers'  &  Merchants'  Bank  v.  Lonergan,  31  Mo.,  46; 
Grimes  v.  Fall,  15  Cal.,  63;  Commonwealth  «.  Emery,  3  Gray,  SO;  Foster  v. 
Xewbrough,  58  N.  Y.,  481;  Carlaud  v.  Cunningham,  37  Penn.  St.,  238;  Mar- 
low  V.  Marlow,  77  111.,  633. 

'  Bronson  v.  Keusey,  3  McLean,  180;  Auger,  Steel.  &c.,  Co.,  v.  ^\niittier,  117 
Mass.,  451;  Anon.,  1  Nott  &  McCord,  604;  McKillip  v.  IMc  Tlhenny,  4 
Watts,  317 ;  Gates  v.  Winter,  3  T.  R.,  306 ;  United  States  v.  Winchester,  3 
McLean,  135;  Harris  v.  Whitcomb.  4  Gray,  433;  Anderson  v.  Applegate,  13 
Ind.,  339;  Marlow  v.  Marlow.  77  111.,  633. 

'Milliken  v.  Barr,  7  Penn.  St.,  33;  Fosters.  Newbrough,  ."iS  N.  Y.,  481. 


NOTICE    TO    PUODUOE    BOOKS    AND    PAPERS.  537 

the  orli^inal.^  So,  also,  in  case  of  a  lost  letter  written  by  the 
opposite  party,  it  was  held  incumbent  npon  the  party  seeking 
to  prove  its  contents,  to  give  notice  to  the  vs^riter  to  produce 
his  letter  book,  supposing  the  letter  to  be  a  duplicate  orig- 
inal.- 

§  1259.  Demand  before  Suit  not  Sufficient.  —  A  demand  made 
before  suit,  upon  the  party  in  possession  of  the  document, 
which  the  party  making  demand  wishes  to  offer  in  evidence, 
will  not  be  treated  as  equivalent  to  a  notice  to  produce,  even 
where  the  refusal  to  furnish  it  is  the  immediate  cause  of  the 
suit,  except  where  the  action  is  for  the  conversion  of  an  in- 
strument of  some  value  and  the  pleadings  allege  that  it  is  in 
the  possession  of  the  defendant.^ 

§  1260.  Xetessary  when  Paper  Recorded.  —  Neither  will  the 
mere  fact  that  the  paper  has  been  recorded,  excuse  notice  to 
produce,  so  as  to  admit  secondary  evidence  of  its  contents, 
in  the  first  instance,  where  the  record  has  been  destroyed.* 
However,  the  general  rule  as  to  notice  to  produce  would  not 
apply  to  recorded  instruments,  where,  upon  proper  preliminary 
proof  that  the  party  had  made  due  search  and  inquiry,  and 
was  unable  to  produce  the  original,  he  is  permitted  to  use  a 
certified  copy  instead.^ 

§1261.  Rule  same  in  Criminal  Prosecution. — But  the  rule  is 
applicable  to  criminal  prosecutions,  substantially  the  same  as 
to  civil  cases;  though  a  diftercnt  view  of  the  law  seems  to 
have  obtained  with  the  court,  in  the  decision  of  one  case.^ 
There  it  was  held  that  notice  to  produce  was  not  necessary,  in 
order  to  introduce  a  copy  of  the  original  paper,  when  such 
original  was  in  the  hands  of  the  accused,  and  would  be  ofi^ered 
by  the  state  against  him;  the  reason  assigned  for  this  holding 
was  that   there  was  no  jpower   in  the   court   to   co^npel   the 

'  Carland  ».  Cunniu^diam,  37  Penn.  St.,  228. 

*  Dennis  v.  Barber,  (i  Serg.  &  R.,  420. 

•'Miiller  «.  Hoyt,  14  Texas,  49;  Lathrop  o.  Mitchel,  47  Ga.,  610. 

*  Murchison  v.  McLeod,  2  .Tones  (N.  C.)  L.,  239. 
» Bowman  v.  Wettig,  39  111.,  416. 

•State  V.  Gurnee,  14  Kas.,  111. 


538  J  i:ac'jjce  aku  pleadikg. 

accused  to  produce  a  paper  which  might  be  evidence  against 
himself.  The  best  considered  cases,  however,  do  not  rest  the 
j-ule  upon  the  power  of  the  court  to  enforce  obedience  to  the 
notice.  The  mere  service  of  a  notice  by  the  opposite  part}^ 
does  not  ordinarily  render  a  h'tigant  subject  to  the  compulsory 
process  of  the  court,  as  though  he  had  disobeyed  a  subpoena. 
The  notice  required  is  not  provided  as  a  means  of  compelling 
the  production  of  books  and  papers  in  cases  of  either  civil  or 
criminal  cognizance.^  Its  purpose  seems  to  be  to  enable  the 
party  notified,  at  his  option,  to  produce  the  best  evidence  of 
the  matter  in  dispute,  or  to  submit  to  having  it  decided  against 
him  upon  evidence  secondary  in  its  character,  aud  which  may 
be  discolored  to  his  prejudice.  The  application  of  this  rule  to 
criminal  cases  is  advantageous  rather  than  otherwise,  to  the 
accused.  It  was  accordingly  held  where  defendant  was  accused 
of  forging  a  draft,  and  he  was  not  notified  to  produce  the 
same,  that  secondary  evidence  of  its  contents  was  inadmissible.^ 
§  1262.  Exceptions.  —  Where,  however,  the  prosecution  is  for 
the  theft  of  tlie  instrument,  or  for  otherwise  obtaining  unlaw- 
ful possession  thereof,  notice  to  produce  is  not  necessary  in 
order  to  pave  the  way  for  the  introduction  of  secondary  evi- 
dence, ofi^'ered  to  prove  the  identity  or  value  of  the  stolen 
instrument,  or  for  any  other  purpose  material  to  the  issue.* 
But  the  reason  for  the  exception  in  such  cases,  is  not  that  the 
court  forbears  to  compel  the  accused  to  produce  documentary 
evidence  against  himself,  but  is  because  the  nature  of  the 
prosecution  informs  the  defendant  sufiiciently  that  the  facts 
which  can  be  best  proved  by  the  production  of  the  paper  in 
question,   will   be  ofiered   in   evidence   against  him.*     So   far 


'  Millikcn  r.  Barr,  7  Penn.  St.,  23 ;  Greeuleaf  on  Ev.,  §  560 :  2  Tidd.  Pr.,  802. 

''The  Queen  v.  Elworthy,  1  Cr.  Cas.,  108;  Le  Mircliand's  Case,  1  Leach 
Cr.  Cns.,  386,  note  a;  Layer's  Case,  Ib.\  Rex.  «.  Haworth,  4  Carr.  &  Payne. 
254;  Commonwealth  ®.  Goldstein,  114  Mass.,  272. 

'Com.  «.  Essinger,  1  Binney  fPa.).  273;  McGinnis  ».  State,  24  Ind.,  500. 
■See,  also,  Pendleton  v.  Com.,  4  Leigh  (Va.),  694;  Aickles'  Case,  1  Leach  Cr. 
Cas.,  380. 

*  See  cases  cnted,  Supra. 


NOTICE   TO    PRODUCE    BOOKS    AND    PAPERS.  539 

from  being  decided  on  the  ground  of  exemption  from  self- 
criminating  testimony,  those  cases  are  so  decided  in  pursuance 
of  a  principle  common  to  cases  of  both  civil  and  criminal 
cognizance.  That  where,  from  the  nature  of  the  action  or 
prosecution,  the  defendant  is  apprised  of  plaintiiPs  intention 
to  charge  him  with  the  possession  of  a  certain  writing,  or 
where  the  declaration  or  indictment  gives  him  notice  to  be 
prepared  to  produce  a  particulai-  instrument,  if  necessary  to 
contradict  plaintiff's  evidence,  no  further  notice  to  produce 
need  be  given,  before  secondary  evidence  may  be  received.^ 

§  1263.  In  Action  of  Trover  Unnecessary.  —  Where  the  action 
was  trover  for  a  bond,  alleged  to  bo  in  the  possession  of 
defendant,  plaintiff  was  allowed  to  give  parol  evidence  of  its 
contents,  to  prove  a  general  description,  without  giving  notice 
to  produce  the  original,  for  the  reason  that  sufficient  notice 
was  given  by  the  nature  of  the  action.^ 

§  1264.  Assumpsit —  Unnecessary.  —  So,  also,  in  assumpsit 
against  the  proprietor  of  a  stage  coach,  in  whose  possession 
certain  promissory  notes  were  alleged  to  have  been  last  seen, 
upon  his  implied  promise  to  carry  such  notes,  secondary  evi- 
dence, descriptive  of  the  notes,  was  admitted  in  the  absence  of 
any  notice  to  produce.^ 

§  1265.  Debt  on  Bond — Unnecessary.  —  And  where  in  an 
action  of  debt  on  a  bond  given  by  defendants,  one  of  whom 
was  a  collector,  to  a  former  treasurer,  conditioned  that  such 
collector  "should  well  and  truly  collect  all  the  taxes  assessed," 
iV:c.,  and  pay  the  same  over  to  tlie  treasurer,  it  was  denied  at 

'  Howell  V.  Hiiyck,  3  Abb.  App.  Dec.  (N.  Y.),  438;  People  v.  Holbrook, 
13  .Johns.,  90;  2  Phil,  on  Ev.,  539  (Cow.  &  H.  &  Ed.  notes);  State  -r.  May- 
berry,  48  Me.,  218;  Nealley  v.  Groenout,4i,  25  N.  IT.,  ;!25. 

•  Howe  V.  Hall,  14  East,  274;  Scott  u  .Jones,  4  Taunt.,  805  ;  Hays  y.  Riddle, 
1  Sandf.,  248;  3IcC'Iean  ».  Hertzog,  6  Ser<r.  &  R.,  154;  Hose  o.  Lewis,  10 
Mich.,  4S3;  Ross  v.  l^ruce,  1  Day,  100. 

^Jolley  V.  Taylor,  1  Campbell,  143.  And  where  the  same  form  of  action 
was  brought  to  recover  the  amoimt  of  an  att(jruey's  bill,  it  was  held  that  an 
unsigned  copj^  might  be  read  in  evidence  to  prove  the  contents  of  the  orig. 
nal  delivered  to  defendant.  Colling  v.  Treweek,  6  B.  &  C,  394.  This  seems 
extending  the  doctrine  of  the  text  a  great  way. 


540  PRACTICE    AND    PLEADING. 

the  trial  that  the  warrant  for  the  collection  of  taxes  referred 
to  the  tax  list,  and  also  that  the  list  was  signed  by  the  assessor, 
as  required  by  law.  The  court  held  that,  as  the  papers  were 
in  the  hands  of  the  defendant,  and  these  were  proper  matters 
of  defense,  the  defendant  must  have  understood  from  the  issues 
raised  by  the  pleadings,  that  they  would  come  in  question,  so 
no  notice  was  necessary.^ 

§1266.  Action  of  Covenant — Unnecessary, — So  in  an  action 
of  cov^enant,  where  the  pleadings  allege  the  possession  of  prom- 
issory notes  or  other  papers  essential  to  be  used  on  the  trial, 
notice  to  produce  them  is  unnecessary."' 

§  1267.  Against  Constable  for  Failing  to  make  Return — Unneces- 
sary. —  It  has  also  been  held  that  in  a  proceeding  before  a 
justice  of  the  peace,  against  a  constable  for  failing  to  return 
an  execution,  parol  evidence  of  the  contents  of  the  execution 
should  be  admitted  without  previous  notice  to  the  constable 
to  produce  the  original.^ 

§1268.  Papers  Filed,  or  Mentioned  in  Pleadings.  —  Where  de- 
fendant in  ejectment  filed  in  the  case  a  copy  of  a  title  bond,  it 
was  presumed  that  the  original  was  in  his  possession,  and  in 
court,  and  on  his  failing  to  produce  it,  the  court  decided  that 
plaintiff  might  read  the  copy  in  evidence  without  notice  to 
produce  the  original.*  But  where  the  bill  of  particulars  con- 
tained an  item  "draft  on  J.  A."  this  was  held  not  sufficient  to 
dispense  with  notice  to  produce  such  draft,  and  permit  defend- 
ant to  offer  secondary  evidence  of  its  contents,  when  the  plea 
did  not  apprise  plaintiff  that  he  was  cliarged  with  its  posses- 
sion.^ But  when,  from  the  nature  of  the  action,  the  defendant 
has  notice  that  he  is  charged  with  the  possession  of  tlie  docu- 
ment, notice  will  be  unnecessary.^ 

'  Kfllar  V.  Saviiii:?.  20  Me.,  199.  See  First  N":it"l  Bk.  v.  Priest,  50  111.,  .S21, 
and  compare  with  Weavers.  Crocker,  49  111.,  4()1. 

*  Hardin  v.  Kretsiuger,  17  Johns.,  293 ;  Hammond  o.  Hopping,  13  Wend., 
505 ;  Dana  v.  Conant,  30  Vt.,  246. 

^  Hart*.  Robinet,  5  Mo.,  11. 

"  Griffin  v.  Sheffield,  38  Miss.,  359. 

^  Dean  v.  Border,  15  Tex.,  29S. 

6  Howell  V.  Huyck,  2  Abb.  App.  Dec.  (N.  Y.),  433. 


NOTICE  TO  PRODUCE  BOOKS  AMD  PAPERS.         541 

§  1269.  Papers  in  Court.  —  So  it  was  held  where  the  papers 
to  be  offered  in  evidence  were  in  court,  that  the  party  having 
them  in  possession  might  be  required  to  deliver  them  to  the 
opposite  party  on  demand,  witliout  any  previous  notice  to 
produce,  and  if  not  deliv^ered,  secondary  evidence  would  be  ad- 
missible.^ The  object  of  this  notice  is  not,  as  has  been  supposed 
in  some  instances,  to  enable  the  party  notified  to  prepare  coun- 
ter evidence  with  which  to  rebut  that  which  is  produced  in 
response  to  the  notice;  for  neither  party  is  required  to  inform 
his  adversary'  of  the  evidence  by  which  he  proposes  to  prove 
his  case.  Notice  is  required  for  the  purpose  of  giving  the 
party  notified  sufficient  time  to  produce  the  paper  if  he  will.^ 

§  1270.  Paper  must  be  Traced  to  Opposite  Party.  —  After  the 
notice  has  been  duly  served,  and  the  original  document  is  not 
forthcoming,  before  secondary  evidence  can  be  offered,  it 
becomes  necessary  to  trace  the  oinginal  into  the  hands  of  the 
opposite  party  or  under  his  control ;  but  slight  evidence  ot 
such  possession  or  control  will  generally  be  sufficient.^  As 
where  the  document  called  for  was  a  written  contract,  and 
there  was  evidence  tending  to  prove  that  it  was  delivered  by 
plaintiflf's  broker  to  his  clerk,  to  be  sent,  in  the  regular  course 
of  business,  to  defendant's  broker,  and  tlie  clerk  could  not  say 
positively  that  he  had  sent  it,  but  testified  that  if  it  came  to  his 
hands,  he  had  sent  it  to  defendant's  broker,  this  was  held  suffi- 
cient evidence  of  the  defendant's  possession  of  the  writing,  to 
warrant  the  introduction  of  secondary  evidence  of  its  contents, 
in  the  absence  of  the  original  after  due  notice  to  produce.* 

§  1271.  Proof  of  Possession  from  Circumstances.  —  So  where 
the  defendant  desired  to  prove  the  contents  of  a  deed,  shown 
to  have  been  in  possession  of  plaintiff's  ftither  during  his  life- 
time, and  since  the  death  of  the  father,  plaintiff  had  always 
had  free  access  to  the    ])apers  left  by  the  deceased  ;  after  a 

1  Boatright  «.  Porter,  32  Ga.,  130;  Dana  v.  Boyd,  2  J.  J.  Marsh.,  587 ;  3 
Tidd  Prac,  804. 

2  See  Post  %  1286. 

'  1  Wharton  on  Ev.,  §  154,  and  cases  (;ited  in  note  6. 
*  Itobb  V.  tStarkey,  2  Curr.  &,  Kir.,  143. 


.■l4"i  PRACTICE    AND    PLEADING. 

notice  duly  served  upon  the  plaintift",  to  produce  the  deed,  and 
failure  either  to  produce  the  same  or  satisfactorily  account 
for  its  absence,  secondary  evidence  of  its  contents  was  ad- 
mitted.' 

§  1272.  Papers  under  Control  of  Adversary.  —  It  is  not  abso- 
lutely necessary  to  trace  the  paper  to  the  possession  of  the 
opposite  party  in  order  to  give  full  effect  to  a  notice  to  pro- 
duce the  same.  It  is  sufficient  if  there  was  a  privity  between 
the  opposite  party  to  the  suit  and  the  one  shown  to  have  pos- 
session of  the  document.  As  where  the  action  was  against 
the  owner  of  a  vessel,  and  the  writing  is  traced  to  the  posses- 
sion of  the  captain;^  or  where  the  person  in  possession  had  a 
pecuniary  interest  in,  though  he  was  not  a  party  to,  the  suit  ;  * 
or  M^iere  the  action  was  against  joint  owners,  and  the  proof 
was  that  a  bill  had  been  rendered  to  one  of  them,  and  last  seen 
in  his  possession  ;*  in  either  of  these,  or  similar  cases,  second- 
ary evidence  would  be  admissible  upon  a  failure  to  produce 
the  original  at  the  trial,  after  notice.  The  rule  will  apply  in 
the  same  manner  where  the  paper  called  for  is  in  the  posses- 
sion of  the  opposite  attorney ;  and  he  may  be  required,  in 
civil  cases,  to  answer,  under  oath,  whether  he  has  the  paper  in 
court.^  And  though  an  attorney  may  not  be  compelled  to 
surrender  a  paper  intrusted  to  him  by  his  client  in  confidence, 
still  he  may  be  required  to  testify  as  to  its  existence,  in  order 
to  lay  a  foundation  for  secondary  evidence  by  proving  the  suf- 
ficiency of  the  notice."  And  even  where  it  is  in  the  hands  of 
a  third  person,  who  is  without  the  jurisdiction  of  the  court,  this 
circumstance  alone  will  not  be  suflicient  either  to  excuse  notice 
or  to  exclude  secondary  evidence  after  notice  to  produce,  which 
is  reasonable,  under  all  the  circumstances.'' 

Mackson  v.  Woolsey,  11  Johns.,  446. 

'Baldney  v.  Ritchie,  1  Stark.,  388. 

^  Norton  v.  Heywood,  20  Me.,  359. 

"  King  «.  Lowry,  20  Barb.,  532. 

'  Morgan  v.  Jones,  24  Ga.,  155. 

•  Brandt  v.  Klein,  17  Johns.,  335;  Morgan  v.  Jones,  24  Ga.,  155. 

'Shepard  v.  Giddings,  22  Conn.,  282. 


NOTIOK    TO    I'KODUOK    HOOKS    AND    PAPERS.  543 

§  1273.  Privity  Must  be  Clearly  Established.— Wliere  the  books  or 
papers  are  in  the  hands  of  any  one  other  than  the  opposite  party 
himself,  the  privity  between  the  two  must  be  clearly  made  out 
before  a  notice  to  produce  will  warrant  the  introduction  of 
evidence  of  an  inferior  degree.  As,  where  a  mortgagee  of  a 
vessel  is  sued  jointly  with  several  of  the  owners,  for  supplies, 
notice  to  him  to  produce  books  and  papers  in-  the  possession 
of  the  ship's  husband,  will  not  authorize  secondary  evidence 
of  their  contents.'  So,  in  an  action  of  trespass  for  false 
imprisonment,  where  the  paper  was  shown  to  be  in  the  hands 
of  the  person  under  whom  defendant  justified,  it  was  held  that 
there  was  not  such  privity  between  him  and  defendant  that 
notice  to  the  latter  to  produce  the  paper  would  let  in  second- 
ary evidence  of  its  contents.-  And  where  the  paper  is  in  the 
possession  of  one  who  occupies  the  position  of  a  stakeholder 
between  the  party  notified  and  another,  notice  to  produce  will 
not  be  available.^ 

§1274.  Pax)er  Passed  out  of  Party's  Possession. —  The  partv 
notified  may  give  evidence  that  the  document  has  lawfully 
passed  out  of  his  possession,  and  it  will  then  devolve  upon  the 
court  to  determine  whether  secondary  evidence  is  admissible.* 

§  1275.  May  Impeach  Copy.  —  The  party  notified,  who  fails  or 
refuses  to  produce  the  original,  is  not  thereby  precluded  from 
disputing  the  correctness  of  the  copy.^  In  the  case  cited, 
where  this  was  so  held,  Campbell,  C.  J.,  in  rendering  the 
opinion  of  the  court,  said  :  "  The  refusal  of  a  party,  after  rea- 
sonable notice,  to  produce  a  document  in  his  ])ossession,  which 
the  adverse  party  is  entitled  to  introduce  in  evidence,  *  *  *  * 
does  not  dispense  with  such  proof  as  is  attainable,  and  does 
not  allow  the  tenor  of  the  instrument  to  be  made  out  by  any- 
thing less  tlian   satisfactory  evidence  of  all  that  is  essential. 

'  Birhcckr.  Tucker,  2  Hall  (N.  Y.  City),  121. 
'Evans  v.  Sweet,  lly.  <k  M.,  H-). 
'Parry  v.  May,  1  Mood.  &  Koh,  379. 

*Harvey«.  Mitchell,  3  Mood.  &,  Hob.,  3(56;  Best  V.  Csborn,  1  Cart.  & 
P.,  (W2. 

^Moulloay.  Mason,  21  Mich.,  :J(;4. 


544  PRACTICE   AND    PLEADING. 

There  is  no  rule  wbicli  prevents  the  contradiction  of  such  sec- 
ondary evidence,  or  which  will  allow  a  document  to  be  con- 
clusively proved  b}-  anything  that  a  party  may  see  fit  to  affirm 
to  be  a  copy.  Dispensing  with  primary  evidence  only  changes 
the  degree  of  evidence  required,  but  in  no  way  allows  a  case 
to  be  made  out  without  proof,  or  prevents  counter  proof.  "^ 

§  1276.  Not  by  Introduction  of  Original.  —  But  though  the 
party  served  with  notice  is  at  liberty  to  controv^ert  the  secondary 
evidence  oifered  in  substitution  for  the  original  writing  which 
he  withholds,  he  will  not  be  permitted  to  introduce  the  orig- 
inal in  furtherance  of  that  object.  Having  refused  to  furnish 
the  document  when  called  for,  he  cannot  afterwards  oifer  it  in 
his  own  behalf? 

§1277.  SBCondarj- Evidence,  even  when  Possession  Disproved. — 
Although  the  party  may  show  that  he  was  not  in  possession  of 
the  paper,  when  served,  as  a  reason  why  his  failure  to  produce 
it  should  not  open  the  way  for  evidence  of  an  inferior  degree, 
yet  so  intolerant  are  the  courts,  of  duplicity,  that  it  has 
been  held  where  he  did  not  deny  possession  of  the  writing 
when  served  with  notice,  nor  disclose  its  whereabouts  when 
known  to  him,  that  secondaiy  evidence  would  be  admitted, 
though  on  the  trial  he  denied  possession  of  the  paper.^ 

§  1278.  Must  be  Proved  when  Produced.  —  "Where  the  original 
paper  is  produced  in  response  to  the  notice,  it  would  seem  that 
this  was  a  sufficient  admission  by  the  party  producing  it,  of 
its  identity  with  the  instrument  called  for;  but  should  its 
execution  or  genuineness  be  disputed  by  the  party  from  whose 
possession  it  is  thus  taken,  it  should  be  proved  as  any  other 
piece  of  documentary  evidence,^  except  where  it  is  an  instru- 
ment under  which  the  party  holding  it  claims  a  beneficial 
estate.'     "Were  the  rule  otherwise,  one  who  happened  to  be  in 

•  But  it  will  not  be  necessary  to  call  subscribing  witnesses  to  prove  the 
execution  of  an  instrument,  the  contents  of  which  are  proved  by  secondary 
evidence.     Cook  v.  Transwell,  2  Moore,  R.  513. 

'  Doon  V.  Donaher,  113  Mass.,  151. 

'Sinclair  v.  Stevenson,  1  Carr.  &  P.,  582. 

*Khoades  i\  Selin,  4  Wash.  C.  Ct.,  715. 

» Pearcc  v.  Hooper,  3  Taunt ,  GO ;  Burnett  o.  Lynch.  5  Barn.  &  Cres.,  589. 


NOTICE    TO    PRODUCE    BOOKS    AND    PAPERS.  545 

possession  of  a  spurious  document  which,  in  the  hands  of 
another,  might  be  used  to  his  prejudice  in  a  legal  proceeding, 
instead  of  enjoying  any  degree  of  security  from  the  possession 
of  the  dangerous  instrument,  would  be  more  seriously  embar- 
rassed than  if  the  writing  were  in  the  hands  of  his  adversary. 
Should  he  receive  notice  to  produce  it,  a  failure  to  comply 
would  open  the  way  for  a  coji}^,  or  parol  evidence  of  its  con- 
tents, which  he  would  have  no  means  of  successfully  contro- 
verting. Should  he  produce  the  instrument  and  be  ruled  to 
silence  as  to  its  genuineness,  his  case  would  be  equally  des- 
perate. 

§  1279.  Need  not  be  Offered  when  Produced.  —  The  notice  to 
produce  may  be  merely  a  tentative  proceeding  on  the  part  of 
the  party  giving  it,  and  when  the  paper  is  produced  its  recitals 
may  be  found  so  at  variance  with  what  was  anticipated,  that 
he  may  not  desire  to  offer  it  in  evidence.  This  he  cannot  be 
forced  to  do,  but  neither  can  he  at  his  option  refuse  to  offer 
the  original,  and  substitute  secondary  evidence  therefor.  As, 
when  the  original  produced  by  defendant  on  notice,  on  inspec- 
tion proved  to  be  at  variance  with  a  copy  in  the  hands  of 
plaintiff,  which  he  offered  in  evidence  instead  of  the  original, 
upon  the  ground  that  what  purported  to  be  the  original  in- 
strument was  spurious,  it  was  held  properly  refused,  as  a 
paper  was  in  court  which  was  at  least  jprima  facie  the 
original.^  In  this  case  the  court  reserved  its  decision  as  to 
how  far  plaintiff  would  have  been  permitted  to  show  a  variance 
of  the  defendant's  paper  from  the  genuine,  after  it  was  once 
introduced;  but  it  would  certainly  seem  tliat  if  he  was  com- 
pelled to  call  upon  the  defendant  to  furnish  the  instrument, 
without  a  previous  opportunity  to  examine  it,  he  should  not 
he  conclusively  bound  by  any  paper  the  defendant  might  be 
pleased  to  produce.  To  decline  offering  the  paper  would  be 
to  abandon  the  point  depending  for  proof  upon  such  evidence. 
To  hold  him  precluded  from  disputing  the  genuineness  of  the 
document  when  offered,  would  be  virtually  to  place  the  party 

»  Stitt  ®.  Huidekopers,  17  Wall.,  884. 
35 


546  PEAOTICE   AND    PLEADING. 

calling  for  the  writing  entirely  in  the  power  of  the  party 
producing  it. 

§1280.  Inference  Drawn  from  Failure  to  Produce.  — We  have 
seen  that  the  failure  to  produce  an  original  instrument  on  the 
trial,  does  not  dispense  Math  proof,  but  merely  admits  evidence 
of  an  inferior  degree.^  However,  when  a  paper  having  an 
important  bearing  upon  the  matter  in  issue  is  traced  to  the 
possession  of  one  of  the  parties,  who,  when  challenged  by  his 
adversary  to  produce  it,  declines  to  do  so,  the  jury  are  at  liberty 
to  infer  from  his  refusal  that  the  instrument  would  be  damag- 
ing to  his  case.'"*  At  least,  when  books  and  papers  are  satisfac- 
torily shown  to  be  in  the  possession  of  a  party  to  an  action, 
which  he  fails  or  refuses  upon  due  notice  from  the  opposite 
party,  to  produce  at  the  trial,  and  the  secondary  evidence  offered 
in  lieu  thereof  is  vague  or  uncertain,  every  presumption  should 
be  against  the  party  who  might  have  rendered  it  clear  by  pro- 
ducing the  best  evidence.^  As  in  the  case  of  Eastman  v.  Amos- 
keag,  &c.,  Co.,^  the  paper  called  for  by  the  notice  was  a  receipt, 
and  not  being  produced,  a  copy  was  oifered  in  evidence,  which 
was  sworn  to  by  a  witness,  who  did  not  pretend  to  have  com- 
pared it  with  the  original,  nor  could  he  recollect  the  contents 
of  the  original,  without  refreshing  his  memory  from  the  copy, 
yet  aided  by  the  presumption  stated  above,  this  was  held  com- 
petent to  go  to  the  jury  to  prove  the  contents  of  the  instru- 
ment withheld. 

§  1281.  Notice  to  Produce  Notice,  Unnecessary,  —  The  weight  of 
authority  in  the  United  States  is  decidedly  in  favor  of  the 
doctrine  that  the  contents  of  a  notice,  whether  it  be  a  notice  to 
produce  or  for  any  other  purpose,  may  be  proved  by  secondary 
evidence,  without  a  notice  to  produce  the  original.  As  for 
example,  a  notice  of  demand  and  non-payment,  or  non-accept- 

^Ante%\215. 

^Kellar  v.  Savage,  20  Me.,  199;  Clifton  v.  United  States,  4  How.,  242. 

*  Eastman  v.  Amoskeag  Man'f.  Co.,  44  N.  H.,  143;  Foye  v.  Leigliton,  24 
Id.,  29;  Cross  v.  Bell,  34  N.  H.,  82;  Bassett  v.  Salisbury  Co.,  28  Id.,  438; 
Life  &  Fire  Ins.  Co.  v.  Mechanics'  Ins.  Co.,  7  Wend.,  31 ;  Bright  v.  Young, 
15  A.la.,  112. 

'  Svpra. 


NOTICE  TO  PRODUCE  BOOKS  AND  PAPERS.        5i7 

ance  of  commercial  paper.^  The  ground  for  these  decisions 
is  that  to  hold  otherwise  would  necessitate  for  every  notice 
sent,  a  new  one  to  show  the  contents  of  the  former,  and  so  on 
ad  infinitum?  It  has  also  been  held,  in  strict  harmony  with 
the  other  cases  cited,  that  the  contents  of  a  notice  by  a  surety 
to  the  holder  of  commercial  paper,  to  sue  the  principal  maker, 
may  be  proven  by  parol,  without  a  notice  to  the  holder  to  pro- 
duce the  original  notice  served  upon  him.^  But  in  a  more 
recent  case,  the  court  decided  that  in  order  to  prove  the  contents 
of  a  written  notice  to  sue,  by  the  indorser  to  the  holder,  there 
should  be  a  notice  to  produce.'* 

§  12S2.  Contents  of  Notice.  —  The  notice  should  contain  a 
plain  and  concise  statement  of  what  is  called  for.  The  case 
should  be  properly  entitled ;  but  where  the  suit  is  brought  in 
the  name  of  one  party  to  the  use  of  another,  and  the  notice  is 
given  by  the  attorney  of  one  party  and  served  upon  the  attor- 
ney of  the  other,  describing  the  suit  as  between  the  nominal 
plaintiff  and  the  defendant,  this  will  be  regarded  as  sufficiently 
certain.^  If  the  notice  is  sufficiently  certain  to  avoid  mislead- 
ing the  opposite  party,  it  will  be  held  good  though  it  be  inarti- 
ficially  drawn.^  As  where  the  descriptive  part  of  the  notice 
was  in  these  words:  "An  agreement  bearing  date  the  12th  of 
December,  1855,  made  between  the  plaintiff  and  the  defendant, 
whereby  the  defendant  agreed  to  let,  and  the  plaintiff  to  take, 
the  house  and  premises  No.  2,"  etc.  (describing  them),  it 
was  held  sufficient.^  So  where  the  papers  designated  were — 
"  All  and  every  letters  written  by  the  said  plaintiff  to  the  said 
defendant,  relating  to  the  matters  in  dispute  in  this  action," 

»  Central  Bank  v.  Allen,  16  Me.,  41;  Eagle  Bank  v.  Chapin,  3  Pick.,  180; 
Leavitt  v.  Siraes,  3  N.  H.,  14. 

*  Morrow  ?).  Commonwealtli,  48  Penn.  St.,  305;  Eisenhart  ®.  Slaymaker, 
14  S.  &  R,  153. 

*  Christy  v.  Uorne,  24  Mo.,  242. 

*  Lathrop  v.  Mitcliell,  47  Ga.,  610.    See,  also,  2  Tidd.  Pr.,  805 ;  cases  cited, 
note  c. 

'Simington  v.  Kent,  8  Ala.,  091. 

« Justice  V.  Elstol),  1  Fost.  &  P.,  256. 

'  Graham  v.  Oldis,  1  Fost.  &  F.,  262. 


548  PKACTICE    AND    PLEADING. 

the  description  was  lield  sufficiently  certain,  because  it  men- 
tioned the  writer,  and  the  person  to  whom  written.^  And  even 
where  a  particular  paper  was  desired,  which  was  among  certain 
accounts,  and  the  notice  called  for  ''all  accounts  relating  to 
the  matters  in  question  in  this  cause,"  it  was  held  sufficient, 
because  enough  was  expressed,  under  the  peculiar  circum- 
stances of  the  case,  to  leave  no  doubt  that  the  particular 
instrument  would  be  called  for.^ 

§  1283.  Should  not  be  too  General.  —  But  the  notice  should 
not  be  so  general  as  to  leave  any  room  for  a  reasonable  doubt 
as  to  what  books  or  papers  are  required ;  or  to  necessitate  the 
production  of  an  unreasonable  number  of  documents  in  the 
possession  of  the  party  notified;  or  to  place  his  private  corres- 
pondence, at  the  disposal  of  the  party  giving  the  notice,  so  as 
to  enable  him  to  inspect  that  portion  which  is  utterly  irrele- 
vant, in  order  to  determine  what  will  answer  his  purpose.  It 
was  accordingly  held  that  a  notice  calling  for  "  all  papers  and 
documents  touchino;  or  concerninof  the  bill  of  exchanife  men- 
tioned  in  the  declaration,  and  the  debt  sought  to  be  recovered" 
was  too  general.^ 

§  1284.  Generally  in  Writing.  —  In  general  the  notice  is 
required  to  be  in  writing,  but  even  where  this  rule  was  expressly 
recognized  as  in  force,  it  was  held  not  to  apply  when  the 
notice  was  given  in  the  presence  and  hearing  of  the  court. ^ 

1285.  Renewal  Unnecessary  in  case  of  Continuance.  —  The 
notice  being  to  produce  documentary  evidence  at  the  trials  it 
will  hold  good  though  the  case  should  not  be  called  at  the  next 
succeeding  term,  or  should  be  continued,  or  passed  until  the 
following  year.^  So  where  the  party  was  notified  to  produce 
an  instrument  to  be  offered  in  evidence  at  the  trial  before  a 
justice  of  the  peace,  and  failing  to  produce  it,  secondary'  evi- 
dence was  offered,  it  was  held  that  the  same  notice  would  be 

'  Jacob  T).  Lee,  2  Mood.  &  Rob.,  33. 

*  Rogers  ®.  Custance,  2  Mood.  &  Rob.,  179 ;  Morris  v.  Hauser,  Id ,  392. 

*  France  n.  Lucy,  Ry.  &  M.,  341. 

*  Kerr  v.  McGuire,  28  IST.  Y.,  446. 
'Reab  «.  Moor,  19  Johns.,  337. 


NOTICE   TO    PRODUCE    BOOKS    AND    PAPERS.  549 

available  for  the  trial  on  appeal,  and  if  the  instrument  was  not 
produced  there,  evidence  of  an  inferior  degree  would  be 
admitted.^ 

§1286.  Time  of  Notice. — A  reasonable  time  must  elapse 
between  the  service  of  the  notice  and  the  trial,  to  allow  the 
party  to  procure  the  writing.  "What  is  reasonable  time 
must  necessarily  depend  upon  the  circumstances  of  each  case. 
As  where  the  sei'vice  was  at  noon  of  the  day  preceding  the 
trial,  it  was  regarded  as  reasonable  in  point  of  time,  and  where 
the  situation  of  the  party  was  such  as  to  have  enabled  him  to 
attend  the  trial  with  the  document,  without  serious  inconven- 
ience.^ And  when  the  notice  was  to  produce  the  book  of 
accounts  of  the  party,  in  consideration  of  the  fact  that  his 
counting-house  was  very  near,  it  was  held  sufficient  if  served 
on  the  evening  preceding  the  trial. ^  So  where  it  was  proved 
that  at  half-past  six  on  the  evening  preceding  the  trial,  plain- 
tiffs attorney  caused  notice  to  produce  a  letter  previously 
written  to  defendant,  to  be  served  on  defendant  at  his  residence 
by  leaving  it  with  his  wife,  and  that  he  caused  a  similar  notice 
to  be  served  at  the  office  of  defendant's  attorney  a  few  minutes 
later  in  the  evening,  this  was  held  not  too  late.^  So,  also,  a 
notice  given  to  the  attorney  several  days  before  the  trial,  was 
held  served  within  a  reasonable  time,  although  the  paj't;y  him- 
self resided  outside  of  the  state. ^  It  was  also  held  where  the 
notice  was  served  on  the  day  preceding  the  trial,  and  it  appeared 
that  the  paper  was  in  the  hands  of  a  party  residing  at  a  dis- 
•tance  of  eighty  miles  from  the  place  of  trial,  that  the  court 
would  not  take  judicial  notice  of  the  fact  that  he  could  not 
have  procured  it,  and  in  the  absence  of  any  showing  of  his 
inability  to  do  so,  secondary  evidence  of  its  contents  was  ad- 
missible.® 

'  Reab  v.  Moor,  Supra. 
2  Ilegina  ®.  Haukins,  2  Carr.  &  Kir.,  832 
s  Shrove  v.  Dulany,  1  Crancli  C.  Ct.,  499. 
*  Mcyrick  v.  Woods,  Carr.  &  Marsh.,  452. 
'  Jetlbrd  v.  lliaggokl,  fi  Ala.,  544. 
«Cody«.  Hough,  20  111.,  43. 


550  PRACTICE   AND    PLEADING. 

§1287.  Served  at  Trial  Too  Late.  —  The  notice  will  be 
regarded  as  too  late  wlien  served  at  the  time  of  trial,  except 
where  it  can  be  shown  that  the  books  or  papers  are  in  court, 
or  are  of  easj  access.'  So,  where  it  was  to  produce  a  letter  in 
reference  to  the  note  upon  which  suit  was  brought,  and  the 
sei'vice  was  at  a  quarter  before  nine  o'clock  on  the  evening 
before  trial,  it  was  held  too  late.^  So,  also,  where  the  notice 
was  served  at  half-past  eight  on  one  evening,  and  the  trial  was 
set  for  the  hour  of  ten  on  the  following  morning,  it  was  held 
not  served  in  time  to  require  the  production  of  the  paper,  nor 
to  warrant  secondary  evidence  when  the  original  was  not  pro- 
duced.^ 

§1238.  Party  not  Required  to  Incur  Expense. — Where  tlie 
notice  was  given  on  Saturday,  to  produce  certain  deeds,  plain- 
tiff's attorney  went  to  town  and  procured  them,  and  on  the 
evening  of  the  following  Monday  was  served  with  another 
notice  to  produce  an  additional  deed,  which  he  said  would  be 
there  in  time  for  the  trial,  if  defendant  would  bear  the  expense 
of  sending  for  it.  This,  however,  defendant  did  not  do,  but 
at  the  trial,  on  the  following  Thursday,  offered  parol  testimony 
of  the  contents  of  the  deed,  which  the  court  refused  to  admit, 
and  it  was  held,  on  appeal,  that  such  refusal  was  proper,  as  it 
was  unreasonable  for  plaintiff  to  repeat  his  journey  to  town 
at  his  own  expense.'* 

§  1289.  Original  not  in  Existence.  —  Objections  on  account  of 
lateness  of  service  will  not  be  sustained  when  the  party  or  his 
attorney  admits  that  the  original  is  not  in  existence.  In  such 
case  secondary  evidence  may  be  given  without  notice.^ 

§  1290.  Oi)posite  Attorney  in  Possession  of  Papers,  —  The  notice 
to  produce  may  be  served  upon  the  attorney  of  the  party  in 
possession  of  the  instrument,  as  effectively  as  if  served  upon 

>  Atwell  t).  Miller,  6  Md.,  10 ;  Barton  v.  Kane,  17  Wis.,  37. 

2  Holt  V.  Miers,  9  Carr.  &  P.,  191. 

2  Lawrence  v.  Clark,  14  Mees.&  Wels,  250. 

*  Doe  V.  Spitty,  3  Barn.  &  Add.,  182. 

5  Foster  v.  Pointer,  9  Carr.  &  P.,  718. 


NOTICE   TO    PRODUCE    BOOKS   AND    PAPERS.  651 

the  party  himself.^  And  service  upon  the  attorney  or  agent  is 
as  good  in  actions  of  a  penal  nature  as  in  any  other.'*  A  sub- 
sequent change  of  attorneys  will  not  invalidate  the  notice, 
provided  it  was  served  upon  the  attorney  for  the  time  being.^ 

§  1291.  One  of  Several  Joint  Parties.  —  Either  one  of  two  or 
more  joint  plain tiiFs  or  defendants  may  be  served  with  notice 
of  this  kind  with  like  effect  as  though  it  were  served  upon 
each  of  them,  provided  they  have  possession  or  control  of  the 
desired  document,  and  an  admission  by  either  that  the  instru- 
ment is  destroyed,  will  dispense  with  notice  entirely,  and 
warrant  proof  of  the  contents  of  the  instrument  destroyed, 
by  the  next  best  evidence  at  the  command  of  the  party.^ 

§  1292.  Personal  Service  not  Indispensable.  —  It  is  not  essential 
in  all  cases  to  show  personal  service  of  the  notice  to  produce. 
It  has  been  held  well  served  when  left  at  the  usual  place  of 
abode  of  the  party  intended  to  be  affected  thereby,  with  some 
person  of  competent  age,  or- where  it  was  left  at  the  office  of 
the  attorney.^  But  in  case  of  service  otherwise  than  personal, 
when,  through  no  fault  of  the  party  required  to  produce,  the 
notice  fails  to  reach  him  in  time,  reasonable  indulgence  should 
be  extende(J  to  him  to  enable  him  to  produce  tlie  original,  in 
order  to  correct  any  errors  or  false  statements  by  which  he 
might  be  prejudiced,  in  the  copy,  or  the  parol  testimony. 

1  Simington  v.  Kent,  8  Ala.,  691 ;  Jefford  v.  Ringgold,  6  Ala.,  54t. 

2  Gates  V.  Winter,  3  T.  R.,  306. 

3  Doe  V.  Martin,  1  M.  &  Rob.,  242. 

<Marlow  v.  Marlow,  77  111.,  633;  King  v.  Lowry,  20  Barb.,  583. 
'  Meyrick  v.  Woods,  Carr.  &  Marsh.,  452. 


652  PRACTICE   AND    PLEADING. 


VII.  Service. 


§  1293.  Iiiiportauce  of  Proper  Service. 

1294.  Divisiou  of  Subject. 

1295.  By  whom  Served. 

1296.  Not  by  Party  in  Interest, 

1297.  By  Unofficial  Person. 

1298.  Wlien  the  Officer  a  Party. 

1299.  Notice  of  Motions,  etc. 

1300.  To  take  Depositions. 

1301.  Upon  whom  Served. 

1302.  Original  Process  Served  on  Agent. 

1303.  Service  upon  Corporations. 

1304.  Statute  for  Benefit  of  Residents. 
1305    Reasonableness  of  Rule. 

1306.  Service  upon  Foreign  Corporations — Federal  Judiciary  Act 

1307.  United  States  Circuit  Courts  have  Limited  Jurisdiction. 

1308.  How  Jurisdiction  Obtained  in  Federal  Courts. 

1309.  How  Corporations  Served. 

1310.  Service  upon  Ticket  Agent. 

1811.  Where  the  Statute  Directory  and  Permissive. 

1312.  Service  on  Municipal  Corporation. 

1313.  Upon  City  Clerk  Insufficient. 

1314.  Service  upon  Partners. 

1315.  Principal  Defendant. 

1316.  Service  upon  Minors. 

1317.  Upon  Convicts. 

1318.  Service  upon  Party  by  Wrong  Name. 

1319.  Variance  between  Name  in  Process  and  Other  Papers. 

1320.  Several  Defendants  in  Diflerent  Counties. 

1321.  Service  upon  Attorney. 

1322.  Same  in  Suit  before  Justice  of  Peace. 

1323.  Should  not  be  upon  Attorney  whose  Connection  with  Case  has 

Ceased. 

1324.  "  Due  "  Notice. 

1325.  Application  for  Injunction. 

1326.  Construction  of  "  Reasonable  "  Notice. 

1327.  Time  Fixed  by  Statute. 

1328.  Admission  of  Notice. 

1329.  Time  of  Notice  of  Motion  for  New  Trial. 


SERVICE.  553 

1330.  Time  Compntecl  from  Date  of  Service. 

1331.  How  Time  Computed. 

1333.  Summons  Must  be  tor  Full  Time. 
1333.  Reference  to  Oilier  Parts  of  Chapter. 
1331.  Manner  and  Mode  of  Service. 

1335.  Personal  Service. 

1336.  Leaving  it  at  Place  of  Abode  not  Sufficient. 

1337.  Personal  upon  Attorney, 

1338.  Strict  Requirement  as  to  Summons. 

1339.  Different  Modes  of  Personal  Service. 

1340.  Bv  Reading  Original,  or  Delivering  Writing, 

1341.  Written,  Must  be  by  Delivery, 
1343.  Rule  Deduced  from  Foregoing. 

1343.  Service  at  Place  of  Abode. 

1344.  General  Remarks. 

1345.  Leaving  at  Residence  or  Place  of  Business  only  Prescribed  by 

Statute. 
1846.  In  what  Cases  Officer  may  Elect  Mode. 

1347.  Leaving  at  Place  of  Residence. 

1348.  Family  of  which  Party  is^  Member, 

1349.  Must  be  at  Present  Place  of  Abode. 

1350.  Necessity  for  Strict  Construction. 

1351.  Actions  Against  Property. 

1353.  Personal  Service  in  Foreign  State. 

1353.  Proof  of  Foreign  Service. 

1354.  Acknowledgment  of  Service. 

1355.  Service  by  Mall. 

1356.  Chancery  Proceedings  in  U.  S.  Court. 

1357.  On  Board  Foreign  Vessel. 

1358.  Non-Resident  Temporally  within  Jurisdiction— when  may  be 
Effectually  Served,  and  when  Exempt. 

1359.  Sunday  or  Legal  Holiday. 
13GU.  Reference  to  Other  Chapters. 


§  1293.  Importance  of  Proper  Service.  —  T^o  step  taken  in  any 
proceeding  which  has  for  its  object  the  giving  of  notice  of  any 
thing  done  or  to  be  done,  in  the  past,  present,  or  future,  in  the 
course  of  practice  in  the  courts,  is  of  greater,  or  perhaps  equal 
importance  to  that  of  serving  notice  upon  the  party  to  be 
affected  by  tlie  proceeding.  Tlie  importance  of  careful  atten- 
tion to  this  matter  arises  from  the  fact  that  it  is  an  act  for  the 
performance  of  which  numerous  ways  are  provided,  and  conse- 


554  PKACTICE    AND    PLEADING. 

quently  the  possibilities  of  error  are  multiplied.  Another 
reason  for  extraordinary  care  in  serving  notice  of  any  pro- 
ceeding by  which  the  interests  of  the  party  served  may  be 
aifected,  is  that  mistakes  or  omissions  of  duty  in  this  respect, 
are  more  likely  to  prove  fatal  to  the  validity  of  the  proceed- 
ing. There  can  be  no  amendment  of  the  service  after  any 
portion  of  the  time  has  elapsed  for  which  the  party  should 
have  had  notice.  When  the  method  of  obtaining  service  is  in 
its  nature  constructive^  as  where  the  notice  may  be  served  by 
leaving  it  at  the  place  of  business,  or  residence  of  the  party 
interested,  the  rules  governing  the  service  are  still  more  strictly 
enforced,  and  fatal  mistakes  are  more  likely  to  occur.  ^ 

§  1294.  Division  of  Subject.  —  In  considering  this  branch  of 
our  subject,  it  may  be  more  conveniently  treated,  and  the 
substance  of  the  authorities  cited  by  way  of  illustration,  more 
perspicuously  arranged,  by  considering  in  regular  order:  1. 
By  ichom  the  notice  should  he  served.  2.  Upon  vjhom  served. 
3.  The  time  of  service.     4.   The  manner  and  mode  of  service. 

§  1295.  By  whom  Served.  —  The  general  practice,  when  formal 
notice  is  required  of  any  impending  proceeding  in  court,  is  to 
have  the  notice  served  by  the  executive  officer  of  the  court; 
but  this  is  not  always  essential.  Matters  of  this  kind  being  to 
a  considerable  extent  within  the  control  of  the  different  courts, 
when  they  are  not  regulated  by  statute,  renders  it  impossible 
to  lay  down  a  rule  applicable  to  all  forms  of  notice,  and  which 
would  be  acceptable  in  all  the  different  tribunals  where  such 
notices  are  required.  But  where  the  notice  to  be  served  par- 
takes of  the  nature  of  the  original  process;  or  when  the  pro- 
ceeding to  be  noticed  is  intended  to  result  in  a  judgment  or 
decree  upon  which  final  process  may  issue,  it  is  the  safer  and 
better  practice  to  have  the  notice  served  by  an  officer.  Wlien 
the  original  process  is  directed  to  a  marshal,  sheriff,  or  con- 
stable, it  should  be  served  by  such  officer  or  his  deputies, 
unless  there  be  some  statutory  provision,  by  which  some  one 
else  may  be  substituted.^ 

'  Infra. 

'  Schwabacker  v.  Reilly,  2  Dill.,  127. 


SERVICE.  555 

§  1296.  Not  by  Party  in  Interest.  —  We  know  of  no  exceptions 
to  the  rule,  that  original  process  can  never  be  served  by  a 
party  to  tlie  snit  npon  liis  adversary ;'  though  the  rule  is  not 
generally  so  strict  with  reference  to  some  other  notices,  which 
are  regarded  as  less  important. 

§  1297.  By  Unofficial  Person.  —  Where  an  order  of  the  Board 
of  Health  of  a  village,  for  the  discontinuance  of  an  offensive 
employment,  was  required  to  be  brought  to  the  knowledge  of 
the  person  subject  to  such  order,  by  a  formal  notice,  it  was 
held  sufficiently  served,  though  not  by  an  officer ;  but  was 
only  held  so  because  its  receipt  by  the  person  affected  was 
proved.'^  So,  also,  has  it  been  held,  under  a  peculiar  statute, 
that  original  process  might  be  serv^ed  by  an  un-official  person, 
instead  of  a  sheriff,  and  such  service  could  be  authenticated 
by  the  affidavit  of  the  person  by  whom  it  was  served,  though 
not  by  liis  mere  certificate.^ 

§  1298.  Wlien  tlie  Officer  a  Party.  —  Service  of  original  pro- 
cess is  not  only  permitted  to  be  made,  in  some  instances,  by 
those  who  are  not  clothed  with  any  official  character  whatever, 
but  when  the  only  available  officer  is  a  party  to  the  proceed- 
ing to  be  noticed  ;  it  becomes  absolutely  necessary  that  some 
one  else  should  be  selected.  When  the  substitute  for  a  sheriff 
is  selected  by  the  court,  he  is  generally  styled  an  elisor,  and 
is  clothed  with  all  necessary  authority  to  discharge  his  duty  in 
the  premises. 

§  1299.  Notice  of  Motions,  etc.  —  Kotices  of  interlocutory 
motions,  notice  of  trial,  notice  to  take  depositions,  and  the 
like,  it  is  generally  understood,  may  be  served  by  an  unofficial 
person  with  the  same  effect  as  by  an  officer  of  the  court,  pro- 
vided sufficient  care  be  taken  to  properly  authenticate  such 
service. 

§  1300.  To  Take  Depositions.  —  Where  one  of  the  parties  to  a 
suit  desires  to  take  depositions,  to  be  used  at  the  trial,  the  ser- 
vice of  notice  upon  the  opposite  party  is  occasionally  ques- 

'Snydacker  v.  Brosse,  51  III.,  357. 
i' Wintlirop  v.  Farrar,  11  Allen,  398. 
3  Coflec  V.  Gates,  28  Ark  ,  43. 


556  PRACTICE    AND    PLEADING. 

tioned,  because  it  is  claimed  to  have  .been  served  bj  an  improper 
person.  In  tlie  State  of  Yermont  it  was  held  that  such  a 
notice  might  be  served  by  the  sheriff  of  the  county  in  which 
the  suit  was  pending,  upon  the  opposite  party  in  another 
county.^  And  under  the  provisions  of  a  statute  of  the  same 
state,  it  was  held  that  notice  of  the  taking  of  depositions  to 
be  used  in  a  trial  before  a  justice  of  the  peace,  should  be  given 
personally  and  orally  by  the  justice  hiraseh?  It  has  also  been 
held  elsewhere,  when  depositions  were  taken  under  a  foreign 
commission,  and  the  interrogatories  were  not  filed  in  time  to 
give  the  opposite  party  an  opportunity  to  file  cross-interroga- 
tories, thereby  rendering  notice  essential,  that  such  notice 
would  properly  come  from  the  commissioner  before  whom  the 
depositions  were  taken,  and  not  from  the  attorney.^ 

§  1301.  Upon  whom  Served,  —  In  determining  tqyon  lohom 
sei'vice  should  he  made,  the  courts  have  had  to  meet  questions 
somewhat  difficult  of  solution.  Considerations  of  the  charac- 
ter of  parties  to  judicial  proceedings,  the  relations  subsisting 
between  those  interested,  and  the  manner  in  which  thev  are 
represented  in  the  contests,  all  tend  to  modify,  in  a  greater  or 
less  degree,  the  sin) pie  rule  that  "  notice  should  be  served  upon 
the  party  adversely  interested  in  the  proceeding."  In  mat- 
ters of  practice,  it  is  often  not  only  extremely  inconvenient  to 
serve  the  party,  but  it  is  sometimes  impossible  ;  and,  except 
with  respect  to  the  original  process,  is  more  effective,  and  best 
subserves  the  interests  of  all  parties  by  being  served  upon  a 
representative.  And  even  a  summons,  citation,  or  original 
notice  may  be,  under  some  circumstances,  served  upon  an 
agent,  with  a  stronger  probability  of  conveying  information 
to  the  principal,  than  would  arise  from  constructive  service 
upon  the  principal  himself,  by  means  of  publication  in  a  news- 
paper, or  posting  written  or  printed  notices  upon  court  house 
doors,  at  schoolhouses  and  cross-roads. 


'  Parker  ?).3Ieader,  32  Vt,  300. 

2  See  Redfield,  J.,  in  Filts  b  Whitney,  32  Vt.,  5S9. 

« Parker  v.  Sedwick,  5  Md.,  281. 


SERVICE.  bOi 

§  1302.  Original  Process  Served  on  Agent.  —  Original  process 
may  under  certain  circumstances,  be  legally  served  upon  the 
agent  of  the  party  to  be  aflected  by  the  proceeding,  as  where 
such  party  is  a  corporation,  foreign  to  the  jurisdiction  of  the 
court  from  which  the  summons  issues,  but  doing  business, 
and  having  its  interests  represented  by  an  agent  or  manager 
within  such  jurisdiction.^  However,  the  power  of  obtaining 
jurisdiction  by  this  kind  of  service,  arises  from  the  non-resi- 
dence of  the  corporation  notified,  rather  than  from  its  corporate 
character;  for  service  upon  the  official  representative  of  a 
domestic  corporation,  though  equally  valid,  is  not  regarded  as 
service  upon  an  agent,  but  upon  the  corj^oratlon  itself.  It  is 
a  resident  of  the  state  or  territory  where  it  was  incorporated, 
in  the  sense  that  it  has  all  the  local  habitation  it  can  have, 
there  and  nowliere  else.  It  can  only  be  reached  personally, 
by  serving  those  who  exercise  its  powers,  and  perform  its 
functions,  and  when  its  officers  and  directors  act  beyond  the 
limits  of  the  state  by  whose  authority  they  were  created  a  body 
corporate,  they  become  merely  agents  of  the  corporation." 
"When  they  are  exercising  their  official  autliority  in  the  state 
whei*e  tliey  were  incorporated,  tliey  are,  for  the  purpose  of  ser- 
vice of  process,  the  corporation  itself;  therefore,  service  upon 
them  is  personal  service.^ 

§1303.  Service  upon  Corporations.  —  In  most,  if  not  all,  the 
states,  jurisdiction  of  foreign  corporations  doing  bnsiness 
within  their  limits  is  secured  by  statutory  provisions,  requir- 
ing as  a  condition  precedent  to  their  Ijeing  permitted  to  transact 
such  business  in  the  state,  that  they  designate  some  person  as 
authorized  to  represent  them,  and  upon  whom  service  may  be 
had  of  all  process  issuing  against  the  corporation."*  It  is  suffi- 
cient however,  to  render  service  upon  such  agent  binding,  if 
the  statute  simply  declares  that  service  may  be  had  upon  resi- 

'  Lafayette  Insurance  Co.  ^.  French,  18  How.,  404;  Weymouth  c.  Wash- 
ington G.  &  A.  R.  R.  Co.,  1  McArthur,  19. 
«  Bank  of  Augusta  «.  Earle,  13  Pet,  588. 

•  Kank  of  Augusta  v.  Earle,  Supra. 

*  Gantt's  Dig.,  g  35G1,  as  amended.     Laws  of  Ark.  (187.5),  p.  190. 


558  PKACTICE   AND    PLEADING. 

dent  agents  of  foreign  corporations  doing  business  in  the  state.^ 
By  engaging  in  business  within  the  limits  of  a  state,  where 
such  a  statute  is  in  force,  the  corporation  will  be  regarded  as 
thereby  voluntarily  submitting  to  the  territorial  jurisdiction 
of  its  courts — subject  only  to  the  right  of  removal  to  a  Federal 
court.^ 

§  130i.  Statute  for  Benefit  of  Residents.  —  JBnt  jurisdiction 
cannot  in  every  instance  be  obtained  in  this  manner,  even 
under  such  statutory  provisions.^  The  statute  is  intended  for 
the  benefit  and  protection  of  the  citizens  of  the  state  where  it  is 
enacted.  Therefore,  in  a  case  where  the  cause  of  action  arose  out 
of  the  state  where  the  suit  was  pending,  and  between  citizens 
of  another  state  and  a  foreign  corporation,  and  process  was 
served  by  leaving  a  copy  of  the  writ  with  its  "agent  and 
attorney"  within  the  state,  it  was  held  that  the  court  thereby 
obtained  no  jurisdiction  of  tlie  defendant.^ 

§  1305.  Reasonableness  of  Rule.  —  There  can  be  no  doubt  of 
the  justice  of  the  very  temperate  provisions  interposed  by  the 
legislative  bodies  of  the  states  for  the  protection  of  their  own 
citizens.  To  require  a  non-resident  corporation  to  submit  to 
the  local  jurisdiction  of  the  courts,  where  it  undertakes  to 
transact  business,  is  simply  to  place  it  as  near  as  may  be  on 
an  equal  footing  with  domestic  corporations  and  resident 
individuals  who  may  be  its  rivals  for  public  patronage.  It 
would  be  eminently  unjust  to  compel  the  states  to  grant  to 
non-residents  the  same  privileges,  immunities,  and  rights  as 
are  enjoyed  by  their  own  citizens,  and  then  deprive  the  latter  of 
the  same  power  of  enforcing  contracts  against  the  foreigners,  as 
they  might  exercise  against  resident  persons  and  corporate 
bodies.  But  by  the  operation  of  the  act  of  Congress,  regulating 
the  practice  in  federal  courts,  known  as  the  Judiciary  Act, 
this  unjust  discrimination  is  effected.^ 

>  Lafayette  Insurance  Co .  v.  French,  Supra. 
'  Ibid. 

*  See  Gen.  Stat.,  Vt.,  Ch.  87,  g  5,  et  seq. 

*  Sawyer  v.  North  American  Life  Ins.  Co.,  46  Vt.,  697. 

*  Originally  enacted  in  1789,  and  re-enacted  without  change  by  the  Aoc 
of  March  3,  1875,  §  1. 


SERVICE.  559 

§1306.  Service  upon  Foreign  Corporations — Federal  Judiciary  Act. 

—  This  act  provides  that  no  civil  suit  shall  be  brought  in  the 
Circuit  Court  of  the  United  States,  against  any  person,  in  any 
other  district  than  that  whereof  he  is  an  inhabitant,  or  in 
which  he  shall  be  found  at  the  time  of  serving  the  process.^ 
The  effect  of  this  provision  is  to  deprive  the  Circuit  Courts  of 
all  original  jurisdiction  over  corporations  foreign  to  the  state 
composing,  in  whole  or  in  part,  the  district  where  the  cause  of 
action  arises.  The  corporation  having  no  legal  existence 
beyond  the  boundaries  of  the  sovereignty  by  which  it  was 
created,  cannot  migrate.  Consequently,  it  could  neither  be 
an  "inhabitant"  of  the  district,  nor  could  it  be  found  in  such 
district  at  the  time  of  serving  process  though  its  officers  might 
be  passing  through  or  found  within  such  district;  for  the  offi- 
cers are  not  the  corporation."^ 

§  1307.  United  States  Circuit  Courts  liave  Limited  Jurisdiction.  — 
This  question  is  ably  discussed,  and  the  cases  thoroughly 
reviewed  by  Judge  Dillon,  in  a  recent  case  decided  in  the  Cir- 
cuit Court  for  the  Eastern  District  of  Arkansas.^  There  the  action 
was  by  a  citizen  of  Arkansas  upon  a  fire  policy  issued  by  defend- 
ant, a  corporation  created  under  the  laws  of  the  State  of  Illi- 
nois, upon  plaintiff's  property  located  in  the  State  of  Arkansas. 
It  is  provided  by  statute  in  the  latter  state,  that  "  no  insur- 
surance  company  not  of  this  state,  nor  its  agents,  shall  do 
business  in  this  state,  until  it  has  filed  with  the  auditor  of  this 
state  a  written  stipulation,  duly  authenticated  by  the  company, 
agreeing  that  legal  process  affecting  the  company,  served  on 
the  auditor  or  the  agent  specified  by  the  said  company,  to 
receive  service  of  process  for  the  company,  shall  have  the  same 
effect  as  if  served  personally  on  the  company  within  the 
state."*     It   was   admitted   that   the   process  was   served   as 

1  Supra. 

*  Bank  of  Augusta  v.  Earle,  Supra;  Ponioroy  v.  N.  Y.  &  N.  H.  R.  TJ.  Co., 
4  Blatchf.,  120;  Day  c.  Newark  India  RuI)l)C'r  Co.,  1  Blatclif.,  628;  Southern 
&  Atlantic  Tel.  Co.  v.  New  Orleans,  etc.,  K.  11.  Co.,  2  Cent.  L.  J.,  88. 

'  Stillwell  V.  Empire  Fire  Insurance  Co.,  4  Cent.  L.  J.,  463.  Sec,  also, 
Cunnin,i;liam  ».  Southern  Ex.  Co..  07  N.  C,  425. 

*  Gantt's  Dig  ,  g  3o6l ;  Laws  1875,  ji.  1!K). 


5  GO  PKACTICE    AND    PLEADING. 

required  bj  the  statute;  but  the  court  held  upon  the  authority 
of  the  cases  ah'eady  cited,  that  jurisdiction  could  not  be 
obtained  hi  the  circuit  court  bj  such  service,  though  the 
justice  of  the  statutory  provision  was  ftillj  recognized.  The 
restrictive  provision  of  the  judiciary  act  was  recognized  as  a 
defect  in  the  jurisdiction  of  the  circuit  courts,  but  one  which 
had  existed  since  the  organization  of  such  courts. 

§  1308.  How  Jurisdiction  Obtained  in  Federal  Courts.  —  There  is 
no  doubt  that  jurisdiction  may  be  obtained  of  non-resident 
corporations  by  this  kind  of  service  of  process  issuing  out  of 
state  courts.  The  statutes  are  enacted  for  the  express  purpose 
of  enabling  them  to  obtain  service  upon  corporations  doing 
business  within  such  states,  and  eminent  federal  judges  have 
not  hesitated  to  notice  without  disapproval,  the  indirect  means 
frequently  employed  for  bringing  such  corporations  into  the 
federal  courts,  by  instituting  the  suits  in  the  courts  of  the 
state,  then  removing  them  to  the  Circuit  Court  of  the  United 
States. 1 

§  1309.  How  Corporations  Served.  —  Upon  what  particular 
officer  of  a  corporation,  or  upon  what  class  of  officers,  process 
or  other  form  of  notice  may  be  served,  in  proceedings  against 
the  corporation,  is  generally  regulated  by  statute  in  the  differ- 
ent states,  and  by  act  of  Congress,  in  such  cases  as  arise  in  the 
federal  courts.  They  include  directors,  presidents,  secretaries, 
treasurers,  managing  agents,  and  a  multiplicity  of  other 
official  representatives  too  numerous,  and  too  diverse  in  their 
titles,  to  admit  of  enumeration.  The  manamno:  assent  is 
recognized  by  the  courts,  both  federal  and  state,  as  a  proper 
person  to  serve  in  such  cases.'^  Though  process  was  held  not 
well  served  where  the  return  showed  service  on  the  "  business 
manager,"  as  this  was  an  officer  unknown  to  the  law.^ 


^  See  Stillwell  v.  Empire  Fire  Insurance  Co.,  Sttpra;  Atlantic  Tel.  Co.  v. 
New  Orleans,  etc.,  R.  R.  Co.,  Supra. 

*  New  England  Car  Spring  Co.  ■».  Union  Rubber  Co.,  4  Blatcbf.,  1;  Scor- 
pion S.  M.  Co.  V.  Marsano,  10  Nev.,  370. 

'Ibid. 


SERVICE.  561 

§  1310.  Service  upon  Ticket  Agent.  —  AYhere  the  proceeding 
was  against  a  railroad  corporation,  the  process  was  held  to  be 
properly  served  upon  any  one  left  in  charge  of  the  depot,  such 
person  being  a  ticket  agent  or  other  subordinate  officer,  when 
the  company  had  designated  no  one  else  to  accept  service  of 
process  issued  against  it.^  But  summons  was  held  not  well 
served  upon  a  mere  book-keeper  of  a  corporation.^ 

§1311.  Where  the  Statute  Directory  and  Permissive.  —  It  has 
also  been  held  where  the  language  of  the  statute  was  that 
service  may  be  had  on  a  director  of  a  railroad  corporation,  that 
such  language  was  permissive  and  directory,  and  not  restric- 
tive or  mandatory,  and  hence  service  on  a  station  agent  was 
sufficient.^ 

§1312.  Service  on  Municipal  Corporation.  —  In  suits  against 
public  or  municipal  corporations,  except  where  otherwise 
provided  by  statute,  process  should  be  served  upon  the  princi- 
pal officer  or  representative  of  the  executive  branch  of  the 
government,  at  the  time  of  service.  And  it  would  seem  that 
he  might  be  served  with  such  process,  or  with  notice  of  any 
proceeding  pending  against  the  corporation,  substantially  as 
though  the  action  or  proceeding  were  pending  against  him  in 
his  individual  capacity.  As  where  a  suit  was  instituted  by 
attachment  against  a  school  district,  under  a  statute  providing 
that  all  writs  against  such  corporations  should  be  served  upon 
the  clerk;  and  the  attachment  law  required  that  a  copy  of  the 
writ  and  a  list  of  the  property  should  be  delivered  to  the  party 
or  left  at  his  usual  place  of  abode,  an  attested  copy  of  the  writ, 
etc.,  being  left  during  the  absence  of  the  clerk,  at  his  usual 
place  of  abode,  with  his  wife,  it  was  held  that  the  service  was 
sufficient.* 

§1313.  Upon  City  Clerk  Insutticient.  —  But  a  summons  or 
other  notice  served  upon  the  clerk  of  a  city,  would  be  ineffect- 
ual to  authorize  a  judicial  proceeding  against   the  city  unless 

>M.  K.  »&  T.  Railway  Company  v.  Crowe,  9  Kans.,  490. 
*  Chambers  «.  King  Wrought  Iron,  etc.,  Co.,  16  Kans.,  270. 
'State  D.  Hannibal  iz  St.  Jo  R.  R.  Co.,  51  Mo.,  532. 
«Dow«.  School  Dist.,  46  Vt.,  108. 

36 


562  PRACTICE    AND    PLEADING. 

such  officer  was  legally  designated  for  that  purjjose.  The 
proper  officer  to  serve  in  such  cases  is  the  mayor  of  the  city.^ 

§1314.  Service  upon  Partners.  — Where  there  are  two  or 
more  parties  interested  as  partners  adversely  to  the  motion  or 
other  proceeding  to  be  noticed,  except  where  the  proceeding  is 
in  its  nature  a  judicial  investigation,  service  upon  one  of  such 
partners  Avould  be  sufficient  to  bind  both  or  all.^ 

§  1315.  Principal  Defendant,  —  Where  there  are  several  parties 
defendant  in  a  suit,  and  the  statute,  or  rules  of  practice,  require 
service,  under  certain  circumstances,  to  be  had  upon  the  princi- 
pal defendant,  it  becomes  an  important  subject  of  inquiry,  as  to 
who  is  such  principal  defendant.  In  deciding  this  matter  in 
a  case  where  the  party  served  was  a  corporation,  and  the  cus- 
todian of  certain  stock,  belonging  to  another  defendant,  who 
was  not  served,  it  was  held  that  the  principal  defendant  must 
be  one  such  as  are  known  in  the  chancery  books,  as  "  active 
parties;"  and  that  in  this  case  that  was  the  owner  of  the  stock, 
and  not  the  corporation.* 

§  1316.  Service  upon  Minors.  —  Service  may  be  had  upon 
minors,  the  same  as  upon  adult  parties,  except  where  the 
statute  lays  down  a  different  rule  of  practice.  But  a  minor 
will  not  be  bound  by  a  written  acknowledgment  of  service, 
whether  such  writing  is  executed  b}'  himself  or  his  guardian, 
or  both.^ 

§  1317.  Upon  Convicts.  —  So  may  process  be  served  upon  a 
convict  confined  in  the  penitentiaiy,  with  the  same  effect  as 
such  service  would  have  upon  another.^ 

§  1318.  Service  upon  Party  by  Wrong  Name.  —  The  object  of 
serving  the  original  process  or  other  form  of  notice  upon  the 
party,  being  to  advise  him  of  the  pendency  of  the  action  or 
proceeding,  it  is  more  important  that  the  proper  party  be  served 

>  Nichols  V.  Boston,  98  Mass.,  39. 

'Perrine  v.  Miller,  4  Thomp.  &  C.  (N.  Y.),  36;  Miller  v.  Perriue,  1  Hun. 
(N.  Y.),  620. 
'Coleman's  Appeal,  75  Penn.  St,  441. 

<  Kansas  City,  St.  .J.  &  C.  B.  R.  R.  Co.  v.  Campbell ,  62  Mo.,  585. 
'Davis  V.  Duffie,  1  Abb.  App.  Dec,  486. 


SERVICE.  563 

than  that  he  be  served  bj  the  proper  name.  As  a  rule,  there- 
fore, the  service  of  process  upon  the  proper  party,  but  by 
a  wrong  name,  will  sustain  a  judgment  entered  against  such 
party  pursuant  to  the  process  served.^ 

§1319.  Variance  between  Name  in  Process  and  other  Papers.  — 
It  has  been  held,  however,  that  a  judgment  against  a  party  in 
his  right  name,  which  name  varies  from  that  appearing  in  all 
other  stages  of  the  proceedings,  though  process  be  personally 
served,  would  be  of  no  avail  against  a  defendant  not  appearing 
to  the  action.^  It  is  difficult  to  see  in  what  essential  particular 
the  case  supposed  differs  from  any  other  in  which  tliere  is  a 
misnomer  of  a  defendant,  who  is  in  fact  served.  The  authority 
of  this  case  might  well  be  doubted,  had  it  been  decided  accord- 
ing to  the  doctrine  laid  down  in  the  dictum. 

§1320.  SeA^eral  Defendants  in  Diiferent  Counties. — When  an 
action  is  against  several  defendants,  some  of  whom  live  within 
the  county  where  the  suit  is  instituted,  and  some  of  them  are 
residents  of  another  county,  in  the  same  state,  the  order  in 
which  such  defendants  shall  be  served  is  sometimes  prescribed 
by  statute  so  that  one  or  more  of  those  resident  within  the 
jurisdiction  of  the  court  shall  be  first  served.  Where  this  pro- 
vision is  in  force,  it  should  be  followed  in  order  to  give  the 
court  jurisdiction.^ 

§1321.  Service  upon  Attorney. — Where  the  matter  to  be 
noticed  is  any  thing  in  the  nature  of  an  interlocutory  motion  or 
proceeding,  arising  in  the  course  of  a  suit,  either  at  law  or  in 
equity,  including  notices  necessary  in  taking  testimony,  notices 
of  appeal,  etc.,  tlie  notice  should  be  served  upon  the  attorney 
where  one  is  em])loyed.'*  And  even  where  the  attorney  of 
record  had  retired  from  the  case,  but  no  one  had  been  substi- 
tuted, as  required  by  the  statute  regulating  the  practice  of  the 

JWelah  ??.  Kirkpatrick,  30  Cal.,  203;  Parry  v.  Woodsou,  33  Mo.,  347; 
Morgan  v.  "Woods,  33  Ind.,  23. 

'•'  Moulton  V.  de  ma  Carty,  G  llob.  (N.  Y.),  470. 

3  Clark  V.  Lichtenborc:,  33  Mich.,  307. 

*  Baileys.  Wright,  24  Ark.,  73;  Rivers  ?j.  Walker,  1  Dal.,  85;  Nash  f). 
Gilkeson,  5  S.  &  K.,  352;  Newlia  v.  Ncvvlia,  8  S.  &  R.,  41;  llutchcsou  v. 
Johnson,  1  Bin.,  59. 


564  I'RACTICE    AxSTD    PLEADING. 

court,  a  notice  served  upon  the  retiring  attorney  whose  name 
still  appeared  upon  the  record,  was  held  well  served.^ 

§  1322.  Same  in  Suit  before  Justice  of  Peace. — So,  where  notice 
of  appeal  from  a  justice's  court,  was  served  upon  the  attorney 
of  appellee,  though  attornej^s  were  not  necessary,  and  the 
statute  required  notice  of  such  appeals  to  be  served  upon  "the 
party,"  omitting  the  words — "or  his  attorney,"  used  in  the 
statutes  governing  appeals  from  other  courts,  it  was  held  that 
the  omission  was  evidently  without  special  design,  and 
service  upon  an  attorney  in  such  case  was  sufficient.^ 

§  1323.  Should  not  be  upon  Attorney  whose  Connection  with  Case 
has  Ceased.  —  A  distinction  is  to  be  made  between  cases  where 
the  attorney  upon  whom  notice  is  served  has  simply  retired 
from  the  case,  and  Mdiere  his  connection  with  it  has  ceased  by 
reason  of  its  having  reached  judgment,  and  the  execution  has 
been  directed.  In  the  latter  case,  a  notice  upon  the  attorney  to 
stay  proceedings  at  law  would  not  be  binding  upon  the  party, 
because  the  relation  of  attorney  and  client  between  them  has 
ceased  with  reference  to  that  ease.^ 

§  1324.  Due  Notice.  —  When  by  the  terms  of  the  statute,  or 
the  rules  laid  down  by  the  court  for  the  regulation  of  practice 
therein,  any  proceeding  is  authorized  only  upon  due  notice  to 
the  opposite  party,  the  term  "  due  "  is  generally  understood 
to  have  reference  to  the  length  of  thne  which  should  elapse 
between  the  service  of  the  notice  and  tlie  hearing  of  the  motion 
or  other  proceeding.  This  indefinite  word  is  employed  where 
it  is  impracticable  or  inexpedient  to  undertake  to  fix  the  time 
for  any  given  number  of  days.  It  necessarily  leaves  to  the 
court  a  very  large  discretion  in  the  matter  of  time  ;  for  not 
only  is  the  word  indefinite  in  its  general  signification,  but  it 
is  used  in  reference  to  so  many  difterent  and  totall}'  dissimilar 
proceedings,  that  it  has  been  found  impossible  for  the  courts  to 
give  it  a  rational  construction,  applicable  alike  to  all  cases. 


»  Grant  v.  White,  6  Cal.,  55;  Herrin  «.  Libbey,  36  Me.,  350. 
^  Welton  T).  Garibardi,  6  Cal.,  245. 
''  Kamm  e.  Stark,  1  Sawyer,  547. 


SERVICE.  565 

The  nearest  approach  to  a  fixed  rule  would  be:  That  due 
notice  of  any  judicial  proceeding  is  notice  for  such  time  as 
the  circumstances  of  each  particular  case  and  the  situation  of 
the  parties  may,  in  the  discretion  of  the  court,  require.  This, 
however,  is  no  7'ule  at  all,  but  merely  a  relegation  of  the 
whole  question  to  the  discretion  of  the  court  wherein  the 
matter  is  pending.^ 

§1325.  Application  for  Injunction. — In  the  case  of  an  appli- 
cation for  injunction  to  restrain  defendant  from  the  prosecu- 
tion of  a  suit  in  ejectment,  where  due  notice  was  required,  and 
the  notice  being  served  on  the  day  next  preceding  that  upon 
which  the  case  was  set  for  hearing,  the  court,  in  view  of  all  the 
circumstances,  finding  that  there  was  no  laches  on  the  part  of 
the  party  making  the  application,  held  such  notice  sufficient.^ 

§1326.  Construction  of  Reasonable  Notice. —  Cases  sometimes 
arise  where  notice  is  required,  without  a  time  being  fixed,  or 
intimated  beyond  the  provision  that  it  shall  be  "  reasonable  " 
notice.  In  order  to  meet  the  refpiirements  of  the  statute,  not- 
withstanding the  vagueness  of  its  provisions,  the  courts  resort 
to  other  statutes  to  learn  what  time  is  thereby  fixed  in  analo- 
gous cases. 

§  1327.  Time  Fixed  by  Statute.  —  Where,  however,  the  time 
within  which  notice  is  to  be  served,  is  fixed  by  statute,  a 
failure  to  comply  will  be  fatal.  As  where  an  appeal  was  taken 
and  the  notice  was  not  served  in  time,  the  appeal  was  dis- 
missed, notwithstanding  the  respondent  had  made  the  follow- 
ing written  acceptance  of  service:  "  Due  service  of  a  copy 
of  the  within  notice  is  hereby  accepted  to  have  been  made 
this  twentieth  day  of  February,  1863."  And  the  judgment 
was  affirmed  on  appeal,  the  court  holding  that  the  acce])tance 
only  admitted  service  on  a  certain  date,  which  by  the  record 
appeared  to  be  too  late.^ 

•Lawrence  v.  Bowman,  1  McAllister,  C.  Ct,  419;  Allen  v.  Hill,  16  Cal., 
113. 

'Lawrence  v.  Bowman,  Supni,. 
»Towdy,  V.  Ellis,  23  Cal.,  050. 


566  PRACTICE    AND    PLEADING. 

§  132S.  Admission  of  Notice.  — But  an  iin(|ualified  admission 
of  "due"  service  of  notice  of  appeal,  withont  mentioning 
any  date,  amounts  to  a  waiver  of  all  objections  to  the  time 
within  which  the  notice  was  served.^ 

§  1329.  Time  of  Notice  of  Motion  for  New  Trial.  —  It  is  nearly, 
if  not  quite,  the  universal  rule  to  have  a  time  fixed  by  statute 
or  rule  of  court,  within  which  notice  must  be  given  of  an  inten- 
tion to  move  for  a  new  trial.  This  notice  may  be  by  an  entry 
on  a  book  kept  for  that  purj^ose,  or  by  service  on  the  opposite 
party,  but  must  be  served  within  the  prescribed  time,  or  it 
will  be  considered  that  the  party  has  waived  his  right  to  have 
such  motion  entertained.^  In  the  case  of  Carpentier  v.  Thurs- 
ton,^ the  matter  of  time  became  important  in  considering 
whether  the  notice  of  motion  fur  a  new  trial  was  served  in 
compliance  with  the  statute.  The  time  fixed,  in  trials  by  the 
court,  was  "  ten  days  after  receiving  written  notice  of  the  ren- 
dering of  the  decision  of  the  judge."  The  cause  having  been 
previously  decided,  the  judge,  on  the  eleventh  of  March,  and 
during  vacation,  deliv^ered  to  plaintifii' written  findings  and  a 
draft  of  judgment  in  his  favor.  On  the  same  day,  plaintiff 
gave  defendant  the  following  written  notice;  After  stating  the 
venue  and  the  title  of  the  cause — "  Please  take  notice  that  the 
findings  in  the  al)ove  entitled  cause  have  this  day  been  signed 
by  the  judge  of  said  court,  and  his  decision  herein  rendered  in 
favor  of  plaintiff,  March  11,  1S65."  The  findings  and  draft  of 
judgment  were  delivered  to  the  clerk  of  the  court,  and  were 
by  him  filed  and  the  judgment  entered  March  13,  and  on 
the  same  day,  notice  of  defendant's  intention  to  move  for  a 
new  trial  was  served  upon  plaintiff'.  Construing  the  written 
notice  from  plaintiff"  most  strongly  against  its  author,  the  appel- 
late court  held  that,  as  the  decision  was  not  rendered  on  the 
eleventh,  as  stated   in   such  notice,  consecjuently  it  was  not  a 

'Struver  c.  Ocean  Insurance  Co.,  9  Abb,  Pr.,  23;  Talmau  v.  Barnes,  12 
Wend.,  227. 

^Caney  o.  Silverthorne,  9  C:il.,  G7;  Ellsassar  e.  Hunter,  26  Cal.,  279;  State 
V.  First  Nat'l  Bank,  4  Nev.,  858. 

"  30  Cal.,  123. 


SERVICE.  5G7 

notice  of  the  rendition  of  judgment,  but  simply  of  signing  the 
findings,  and  that  there  was  no  notice  of  the  rendering  of  the 
decision  until  the  thirteenth,  wJiicli  allowed  defendant  until  the 
twentj-third  to  give  notice  of  his  intended  motion. 

§1330.  Thne  Computed  from  Date  of  Service. —  It  will  be 
observed  that  the  time  is  computed  from  the  se?'vice,  and  not 
from  the  date  of  the  notice,  in  order  to  ascertain  whether  it 
is  due,  reasonable,  or  given  within  the  prescribed  time.  So 
where  ten  da_ys'  notice  of  a  sale  was  required  by  contract,  and 
the  notice  was  dated  on  the  fifteenth,  and  served  on  the  seven- 
teenth, that  the  sale  would  take  place  on  "  ten  days  afterdate,'' 
the  service  was  held  insufficient.^ 

§  1331.  How  Time  Computeil.  —  In  calculating  the  time  of 
service  of  a  notice  of  hearing,  either  the  day  on  which  the 
notice  is  served,  or  the  day  on  which  the  hearing  is  to  be  had, 
is  excluded  from  the  computation.' 

§  1332.  Summons  Must  be  for  Full  Time  —  The  service  of  orig- 
inal process,  in  a  suit  at  law,  is  never  left  to  conjecture,  in 
point  of  time  ;  and  where  there  is  any  difference  in  the  strict- 
ness with  which  the  law  is  enforced  in  tiiis  particular,  between 
a  summons  and  a  notice  of  hearing  of  a  motion  or  other  inter- 
locutory proceeding,  where  the  time  of  service  is  prescribed, 
the  more  rigid  compliance  is  required  in  serving  the  original 
process.  Unless  the  summons  is  served  for  the  full  time  be- 
fore return  day,  it  is  an  absolute  nullity.^ 

§  1333.  Time  of  Notice  of  Taking  Depositions,  etc.  —  As  to  the 
time  required,  in  the  service  of  notices  to  take  depositions,  and 
to  produce  papers,  etc.,  on  the  trial,  the  reader  is  referred  to 
the  parts  of  this  chapter  where  those  subjects  are  separately 
treated.* 

§  1334.  Manner  and  Mode  of  Service.  —  Tlie  manner  and  mode 
of  service,  depends  of  course,  upon  tlie  character  of  the  pro- 
ceeding, as  well  as  the  statute  by  which  the  same  is  regulated. 

>  Chase  v.  Hogan,  6  Bosw.  (N.  Y.),  4:51. 

*  Anderson  v.  Baughman,  6  Mich.,  298. 
»  Draper  ».  Draj.er,  .')9  111.,  119. 

*  See  Ante. 


568  PRACTICE    AND    PLEADING. 

In  general,  however,  where  notice  is  required  by  statute  or  rule 
of  court,  and  the  method  of  serving  the  same  is  not  laid  down, 
it  is  understood  that  there  shall  be  i^ersonal  service.^  And  when 
the  statutoiy  proceeding  is  one  in  derogation  of  common 
right,  as  the  involuntary  sale  of  the  property  of  an  individual, 
the  statute  must  be  strictly  construed,  and  closely  pursued.^ 

§  1335.  Personal  Service. — When  it  appears  from  a  reasonable 
construction  of  the  statute,  or  rule,  that  ^personal  service  was 
intended,  no  other  can  be  substituted  so  as  to  render  the  pro- 
ceeding binding  upon  the  party  served,  in  case  he  refuses  to 
recognize  the  same.^ 

§1336.  Leaving  it  at  Place  of  Abode  not  Sufficient. — So  where 
personal  service  of  a  notice  from  street  commissioners  to  the 
owners  of  property  adjacent  to  certain  streets,  requiring  such 
property  owners  to  improve  the  street,  it  was  held  that  such 
notice  could  not  be  legally  served,  during  the  temporary 
absence  of  the  owner,  by  leaving  it  at  his  usual  place  of  abode.'* 

§  1337.  Personal  upon  Attorney.  —  So,  also,  where  the  notice 
was  one  which  should  have  been  served  personally  njDon  the 
attorney  of  the  adverse  part}'^,  it  was  not  well  served  by  put- 
ting it  under  the  attorney's  door,  and  taking  no  further  care 
to  see  that  it  was  received.  Had  there  been  a  call  upon  the 
attorney  on  the  following  day  when  his  office  door  M^as  open, 
and  an  inquiry  after  the  notice,  the  service  might  have  been 
regarded  as  sufficient,  because  such  diligence  might  have 
insured  its  receipt.  And  there  is  no  form  of  notice  except 
perhaps  original  process,  which  may  be  invalidated  by  reason 
of  its  being  served  in  an  improper  manner,  provided  it  be 
received  in  due  time.^ 

§  1338.  Strict  Requirement  as  to  Sununons.  —  Original  process, 
in  order  to  sustain  a  personal  judgment,  should  be  personally 

'  Rathhurn  c.  Acker,  18  Barb.,  393;  McDermot  u.  Board  of  Police,  etc. 
25  Barb.,  (135. 

■■^  Rathliurn  «.  Acker,  Suprn. 
'Bond  V.  Wliitfield,  28  Ga.,  537. 
*  Simons  v.  Gardiner,  6  II.  I.,  255. 
'  Burdett  v.  Lewis,  7  C.  B.  (IST.  S.),  791. 


SKHVICE.  569 

served  except  where  some  other  form  of  service  is  provided  by 
statute.  So  strict  are  the  courts  in  enforcing  the  require- 
ments of  the  statute  in  this  respect,  that  in  one  case  where 
personal  service  was  required,  it  was  held  that  an  admission  of 
service  would  not  be  sufficient  to  warrant  judgment  by 
default,  unless  it  was  an  admission  oi  personal  service.^  So 
where  personal  service  of  the  original  notice  was  required  by 
statute,  in  a  suit  against  partners,  it  was  held  that  service  upon 
the  wife  of  one  of  such  partners  would  not  be  sufficient.^ 

§  1339.  Different  Modes  of  Personal  Service.  —  But  where  there 
is  no  question  but  that  the  notice  is  intended  to  be  served  per- 
sonally upon  the  party  to  be  affected  by  the  action  or  proceed- 
ing noticed,  the  manner  of  making  the  service  is  subject  to 
certain  modifications,  incident  to  the  form  of  the  notice.  It 
need  hardly  be  remarked  that  a  verbal  notice  may  be  orally 
served;  but  when  the  notice  is  in  writing,  there  is  more  than 
one  method  provided  for  serving  it  personally;  the  first  and 
most  obvious,  is  by  delivering  to  the  party  the  original.  The 
second  is  by  delivering  a  copy,  and  a  third  is  by  reading 
the  notice  to  the  person  served. 

§  1340.  By  Reading  Original  or  Delivering  AVriting.  —  Whether 
a  written  notice  shall  be  served  by  delivery  of  the  writing  or 
a  copy  thereof,  or  by  reading  the  original,  or  by  either,  at  the 
option  of  the  officer  or  other  person  making  the  service,  is,  in 
most  instances,  regulated  by  statute  ;  but  this  is  not  always 
the  case.  And  when  the  statute  is  silent  as  to  the  manner  of 
service  of  a  notice  in  writing,  bej'ond  the  requirement  that  it 
shall  be  personal,  the  question  may  arise  as  to  whether  reading 
the  written  notice  would  be  a  sufficient  com])liance  with  the 
law. 

§  1341.  Written,  Must  be  by  Delivery.  —  In  the  case  of  Purs- 
ley  V.  Hays,^  it  is  intimated  that  personal  service  of  an  orig- 
inal notice,  when  the  same  is  attached  to  the  petition,  may  be 

'  Read  v.  French,  28  N.  Y.,  285. 
5  Brydolf  v.  Wolf.  32  Iowa,  509. 
2  22  Iowa,  11,  28. 


570  PKACTICE    AND    PLEADING. 

made  by  reading,  as  well  as  by  delivery  of  a  copy  to  the  party 
served.  However,  under  a  statute  of  Rhode  Island,  requiring 
"  reasonable  notice  in  writing"  of  the  appointment  or  removal 
of  a  guardian,  it  was  held  that  such  notice  could  not  be  per- 
sonally served  by  reading  the  same.^  Judge  Story,  in  deliv- 
ering the  opinion  of  the  court,  said  :  "I  understand  that  the 
notice  must  be  a  notice  in  writing  ;  tliatthe  officer  must  leave 
with  the  party  a  written  notice,  an  original  from  the  clerk,  or 
at  least  a  certified  copy,  in  writing,  thereof.  In  no  just  sense 
can  a  notice  by  reading  be  deemed  a  notice  by  writing.  *  * 
*  *  *  -s  ^Q  instance,  I  believe,  can  be  produced  where  a 
notice,  required  to  be  served  and  given  in  writing,  has  been 
held  valid,  unless  the  service  has  been  hj  the  delivery  of  the 
paper  itself,  or  a  copy  in  writing."  ^ 

§1342.  Rule  Dednct'tl  from  Foregoing. — We  have  seen  that 
when  the  manner  and  mode  of  service  is  not  pointed  out  bj^ 
the  statute,  personal  service  is  generally  understood.^  It 
seems  also  to  be  settled,  both  upon  principle  and  authority, 
that  a  torltten  notice  can  only  be  served  by  delivery  of  the 
original,  or  an  authenticated  copy.''  If  the  foregoing  is  sound 
doctrine,  we  may  deduce  therefrom  the  rule  that  a  notice, 
required  by  statute  to  be  in  writing,  in  the  absence  of  any 
designation  of  the  manner  and  mode  or  its  service,  shall  be 
served  by  delivery  of  tlie  original  or  a  copy  thereof  to  the 
party  to  be  affected  by  the  proceediiig  noticed.  However,  the 
cases  have  not  all  been  decided  in  conformity  to  this  rule.  In 
the  case  of  Hildreth  v.  Lowell,^  it  is  decided,  where  it  was 
required  by  a  city  ordinance  that  the  officers  should  "  give 
notice  in  writing  to  the  several  owners"  of  property  across 
which  it  was  intended  to  lay  out  a  drain,  that  the  provisions 
of  the  ordinance  were  sufficiently  complied  with  b}'  giving 
personal  notice  to  the  known  owners,  and  by  posting  two   or 

'  Hart  i\  Gnty,  3  Sumu.  (U-  8.),  330. 

"^  See  FiUs  v.  Whitney,  32  Vt.,  589. 

^See  Ante,  %  1334. 

■*  Htivt-y.  Gray,  Suprn;  Fitts  v.  Whitney,  Supra. 

» 11  Gray,  345. 


SEKVICE.  571 

more  copies  of  such  notice  at  public  places  in  the  city.  But 
in  whatever  manner  the  original  process  may  be  served,  it  will 
be  regarded  as  sufficient,  both  at  law  and  in  equity,  where  the 
receipt  of  the  writ  is  properly  acknowledg-ed  in  writing.^ 

§  1343.  Service  at  Place  of  Abode.  —  We  now  come  to  the 
consideration  of  a  species  of  service  which  has  been  denomi- 
nated jc^r^o^a?,  to  distinguish  it  from  service  hy  mail  y'~  and 
substituted^  as  contradistinguished  from  service  strictly  'per- 
sonal? It  has  also  been  called  both  actual  *  and  constructive  ^ 
service.  It  is  made  bj^  leaving  the  original  or  a  copy  at  the 
usual  place  of  abode  of  the  party  to  be  served,  with  some  one 
other  than  himself. 

§  1314.  General  Remarks.  —  The  fact  that  tliis  method  of  ser- 
vice is  so  differently  classified  is  not  at  all  surprising  when 
we  consider  the  different  circumstances  under  which  it  is 
employed.  When  the  matter  noticed  is  the  dishonor  of  a  note 
or  bill,  the  prompt  payment  of  which  the  party  notified  has 
conditionally  guaranteed,  it  may  fairly  be  presumed  that  he 
has  provided  against  the  contingency  which  he  knows  may  arise 
at  a  time  certain,  and  that  a  notice  left  for  him  at  his  resi- 
dence or  place  of  business  would  be  less  likely  to  meet  with  a 
careless  reception  from  those  in  charge  during  his  absence 
tlian  a  notice  of  a  matter  of  which  he  has  had  no  previous 
warning,  and  for  which  he  could  have  made  no  adequate  prep- 
aration. He  may  justi}'  be  presumed  to  remember  that  lie 
has  indorsed  a  bill  or  note,  which  may  be  dishonored  on  a  cer- 
tain day,  and  that  he  lias  left  directions  concerning  the  receipt 
of  notices  of  such  mattei's.  No  man  may  be  supj^osed  to  cal- 
culate upon  being  served  with  original  process,  or  with  notice 
of  an  interlocutory  or  other  proceeding  in  court. 

§  1345.  Leaving  at  Residence  or  Place  of  Bnsinessonly  Prcsci-ibcd 
by  Statute. — However,  it  is  quite  certain   that   though   this 

'  Banks  v.  Banks,  lil  111.,  103. 
« See  Ante,  Pt.  IV.,  Chap.  VI. 
'  Chittenden  v.  llobbs,  !)  Iowa,  417. 
*•  Sturgis  v.  Fay,  16  Ind.,  429. 
.*Brownfield  v.  Dyer,  7  Bush.  (Ky.),  505. 


5^2  PKACTICE    AND    PLEADING. 

method  of  service  may  be  very  Hberall}'  viewed  for  some  pur- 
poses, yet  it  is,  in  no  instance,  regarded  with  the  same  favor 
as  service  strictly  personal.  So  far  as  it  is  resorted  to  in 
matters  of  practice,  it  is  recognized  only  because  it  is  prescribed 
by  statute,  or  is  employed  in  a  proceeding  analogous  to  one 
where  it  is  so  authorized,  and,  like  all  statutory  innovations, 
must  be  strictly  construed.^ 

§  1346.  Ill  what  Cases  Officer  may  Elect  Mode.  —  In  some  cases 
the  statute  authorizes  this  method  of  service  to  be  resorted  to 
at  the  option  of  the  officer  or  other  party  who  has  the  notice 
in  cliar^e  to  serve,  regardless  of  whether  service  might  not  be 
had  upon  the  party  in  person.^  But  in  other  cases  it  is  only 
permitted  when  personal  service  is  impracticable.^  In  order 
to  justify  the  leaving  of  the  notice  or  writ,  with  any  one  other 
than  the  person  to  be  notified,  it  is  necessary  not  only  that  it 
should  appear  to  be  the  most  convenient  and  expeditious  method 
of  disposing  of  the  matter,  but  that  it  was  the  only  practicable 
metliod  at  the  time.  It  is  not  sufficient  for  the  return  to  show 
that  the  party  was  absent  from  his  residence  where  the  paper 
was  left,  but  tliat  he  could  not  be  found  within  tlie  jurisdiction 
of  the  court.* 

§  1347.  Leaving  at  Place  of  Residence.  —  Under  a  statute 
requiring  the  summons  to  be  delivered  to  the  person  served,  or 
left  at  his  place  of  residence,  it  is  not  sufficient  to  leave 
a  copy  at  his  place  of  business,  unless  it  is  also  where  he  resides 
at  the  time.^  And  where  it  is  required,  in  the  event  that  it 
is  not  served  personally,  that  it  shall  be  left  at  defendant's 
usual  place  of  abode,  with  a  member  of  his  familj-,  etc.,  the 
summons  will  not  be  sufficiently  served  by  leaving  it  with  his 
wife  unless  it  be  left  with  her  at  the  husband's  place  of  abode 
as  the  statute  requires." 

'  Browntield  v.  Dyer,  7  Bush.  (Ky.),  50o  ;  Mullins  v.  Sparks,  48  Miss.,  139; 
Pollards.  Wegener,  13  Wis.,  56!J. 

'^  Hughes  V.  Oaborii,  42  lud.,  4o0 ;  Rosseau  v.  Gayarre,  34  La.  An.,  355. 
'Davis  V.  Burt,  7  Iowa,  56;  Chittenden  v.  Hobbs,  9  Id.,  417. 
^Matteson  v.  Smith.  37  Wis..  333. 
*  Lambert  i).  Sample,  25  Ohio  St.,  3?.a. 
•Hewitt  V.  Weatherby,  57  Mo.,  276. 


SERVICE.  573 

§  1348.  Family  of  which  Party  is  a  Member.  —  But  it  will  be  a 
sufficient  compliance  with  the  statute,  so  far  as  it  relates  to 
the  person  witli  whom  it  is  to  be  left,  if  such  person  be  a 
member  of  the  family  to  which  the  party  belongs,  whether  he 
be  the  head  of  the  family  or  not.  It  is  sufficient  if  the  part}- 
to  be  served,  and  the  one  with  whom  the  paper  is  left,  live 
together  in  the  same  family.^ 

§1349.  Must  be  at  Present  Place  of  Abode.  —  Courts  of  equity 
are  equally  strict  in  enforcing  the  observance  of  the  rules 
governing  the  service  of  process,  when  their  subpoenas  are 
served  otherwise  than  personally,  in  the  strictest  sense  of  the 
term.  It  has  accordingly  been  held  that  it  will  not  be  suffi- 
cient to  leave  a  subpoena  at  the  last  usual  place  of  abode,  but 
that  it  must  be  left  at  the  present  dwelling  house,  or  usual 
place  of  abode  of  the  part}^  served.^ 

§  1350.  Necessity  for  Strict  Construction.  — The  necessity  for  a 
strict  construction  of  statutes  authorizing  the  substitution  of 
this  method  of  service,  for  that  which  brings  the  matter  directly 
to  the  knowledge  of  defendant,  is  fairly  illustrated  by  the  recent 
case  of  Earle  v.  McYeigh.^  There  the  statute  seemed  sufficiently 
accommodating  to  satisfy  the  eagerness  of  the  most  persistent 
j^rosecution;  for  it  provided  that  during  the  absence  of  the  de- 
fendant and  all  the  members  of  his  family,  notice  of  suit  might 
be  served  by  posting  it  upon  the  front  door  of  his  usual  place 
of  abode.  The  defendant  in  this  case  had  vacated  his  residence, 
with  his  family,  seven  months  previous  to  the  attempted  ser- 
vice, and  they  had  ever  since  resided  within  the  confederate 
lines.  The  notice  was  accordingly  posted  upon  the  front  door 
of  the  tenantless  house,  and  defendant  appearing  by  attorney, 
the  appearance  was  stricken  O'iit,  Ijecause  of  the  very  absence 
alleged  as  a  ground  for  the  spurious  service  of  process.  The 
learned  justice  of  the  Supreme  Court  who  rendered  the  opinion 
not  only  took  occasion  to  reprobate  the  striking  out  of  defend- 

'  Converse  ■».  Warren,  4  Iowa,  158. 

» Hyslop  v.  Hoppock,  5  Ben.,  447 ;  S.  C,  6  Bankr.  Reg.,  553 ;  Pigott  v.  SneU, 
69  111.,  106. 

'91  United  Slateb  (1  OUo},  503. 


574:  PRACTICE    AND    PLEADING. 

ant's  appearance  in  response  to  the  notice,  but  decided,  with 
tlie  full  concurrence  of  the  entire  bench,  that  the  place  where 
the  notice  was  posted  was  not  defendant's  "  usual  place  of 
abode,"  and  hence  the  service  was  not  sufficient  to  warrant  the 
judi^ment,  which  was  declared  void.  It  appears  from  a  refer- 
ence to  this  and  other  of  the  best  considered  cases  upon  this 
subject,  that  service  made  in  this  manner  must  be  in  strict 
conformity  to  the  statute  hy  which  it  is  authorized.  And  in 
no  respect  are  the  courts  more  exacting  than  in  the  matter  of 
the  ])lace  wliere  the  notice  or  copy  should  be  left.  If  it  is 
required  to  be  the  "  place  of  abode,"  the  proof  of  service  must 
be  in  language  that  will  describe  that  place  and  no  other.'  It 
will  not  be  sufficient  that  it  is  served  at  the  defendant's 
"house,"  for  he  may  have  many  houses.  Nor  even  at  his 
"  dwelling  house,"  for  circumstances  maj^  render  this  equally 
indefinite.  And  we  have  seen  bj-  the  case  last  cited  that 
mistakes  ina}'  easily  be  made  in  deciding  what  is  the  "  usual 
place  of  abode."  It  is  not  sufficient  that  the  premises  are  the 
property  of  defendant ;  that  he  has  resided  there,  and  may 
reasonably  be  expected  to  make  that  his  dwelling  place  in  the 
future.  It  should  be  his  present  place  of  abode,  and  the  qual- 
ifying word  "  usual  "  is  employed  simply  to  meet  cases  where 
the  abiding  place  of  the  defendant  is  capriciously  changed  at 
uncertain  intervals  from  that  where  he  is  accustomed  to  reside, 
and  which  he  calls  his  home.  Mere  absence  from  home,  it  is 
true,  will  not  destroy  the  character  of  the  "  place  of  abode  ;" 
but  when  the  defendant  has  with  his  faimly  taken  up  his  resi- 
dence elsewhere,  he  can  not  be  said  to  have  an  abiding  place 
at  his  former  residence,  for  the  present  abandoned.'"^ 

§  1351.  Actions  Against  Proi)erty.  —  When  the  object  of  the 
action  is  to  aflect  the  title  to  property,  either  real  or  per- 
sonal, the  notice  may  be  served  by  methods  still  less  direct 
than  that  above  described,  as  by  posting  notices  in  public 


'  See  case  cited,  Supra. 
2  Earle  v.  McVeigh,  Supra. 


SERVICE.  575 

places,'  and  by  publication  in  a  newspaper,^  when  tliere  must 
be  a  strict  compliance  with  the  statute  in  every  substantial 
particular.^ 

§  1352.  Personal  Service  in  Foreign  State,  —  There  is  another 
mode  of  service  which  has  been  adopted  in  several  of  the  states, 
and  may  be  resorted  to  in  actions  in  rem,  when  the  defend- 
ant is  beyond  the  territorial  jurisdiction  of  the  court,  and  that 
is  by  serving  him  in  person  in  the  foreign  state.*  But  such 
service  will  not  support  a  personal  judgment  in  the  state  from 
whence  the  process  issues.^  Where  a  suit  was  brought  under 
such  a  statute  the  judgment  was  set  aside  because  it  did  not 
appear  affirmatively  from  the  affidavit  by  which  the  service 
was  proved,  tliat  the  cop}^  of  petition  and  notice  were  delivered 
to  the  defendant  at  some  place  without  the  state,  and  within 
the  United  States.^  It  has  also  been  held  under  a  similar 
statute  in  another  state,  that  this  mode  of  service  could  only  be 
employed  where  publication  had  been  ordered,  and  that  such 
service  would  not  be  complete  until  the  exjiiration  of  the  time 
of  publication." 

§  1353.  Proof  of  Foreign  Service.  —  It  cannot  be  doubted  that 
service  made  in  this  manner  will  be  more  effective  as  notice  to 
the  parties  to  be  affected  b}'-  the  action  or  proceeding,  than 
wliere  it  is  published  in  a  newspaper  or  posted  in  "public 
places."  But  considerable  care  is  necessary  in  proving  such 
service,  lest  the  court  be  imposed  upon  by  a  supposititious 
delivery  of  the  notice  to  the  non-resident  part3\  It  was 
accordingly  held  in  one  case  that  where  service  was  made  by 
this  mode,  it  should  be  shown  by  the  affidavit  of  service  that 
the  notice  M'as  served  upon  the  identical  person;  the  affidavit 
of  his  acknowledgment  of  identity  not  being  sufficient.^ 

'  People  ».  Bernard,  4:j  CiU.,  385. 

-See  Ante  C\\.W1,  Publicatiou  of  Notices. 

^  Ibid. 

^Salisbury  v.  Sands,  2  Dill.,  370;  Darrance  v.  Preston,  18  la.,  396. 

*Weil  V.  Lowenthal,  10  Iowa,  57"). 

*  Fisher  v.  Fredericks,  33  Mo.,  ((12. 

'Brooklyn  Trust  Co.  v.  Btilmer,  4!»  N.  Y.,  84. 

"Gole».  Allen,  51  Ind.,  122. 


576  PKACTICE    AND    PLEADING. 

§  1354:.  Aokiiowletlgment  of  Service.  —  However,  where  the 
statute  2^1'ovided  that  an  original  notice  might  be  served  by 
having  the  acknowledgment  of  service  indorsed  upon  the 
notice  dated  and  signed  by  the  defendant,  a  notice  so  served 
was  held  to  require  no  further  formal  proof  of  service  than 
such  acknowledgment,  and  that  a  waiver  of  service  so  indorsed 
was  equivalent  to  such  acknowledgment,  and  was  good  though 
made  in  another  state. ^ 

§  1355,  Service  bj-  3Iail.  —  Xotice  of  the  dishonor  and  pro- 
test of  bills  of  exchange  may  be  served  by  simply  depositing 
the  same  in  the  postoffice,  properly  addressed  to  the  antecedent 
party  to  be  notified.-  But  though  service  may  be  made  by 
this  mode,  of  such  notices  as  are  required  in  practice,  they 
cannot  be  served  in  this  manner  Math  the  same  conclusive 
effect  for  all  purposes  upon  the  party  served,  as  would  follow  a 
similar  service  of  notice  of  protest,  or  personal  service  of  orig- 
inal process.  In  matters  of  practice,  service  by  this  method 
is  only  resorted  to  as  a  substitute  for,  or  an  adjunct  to,  service 
by  publication  in  a  newspaper,  and  of  course  process  so  served 
would  not  authorize  a  personal  judgment.  Such  service  is 
usually  made  upon  the  order  of  the  court.^  Even  when  the 
statute  authorizes  the  service  of  summons  outside  of  the 
county  in  which  the  suit  is  instituted,  where  the  action  is  on 
contract,  this  will  not  authorize  service  in  actions  on  the  case 
for  damages  for  alleged  fraud  and  deceit  in  making  a  contract.* 
The  service  of  process  by  mail  is  only  authorized  under  certain 
conditions,  and  as  a  general  rule  when  a  party  relies  upon 
service  obtained  by  tliis  mode  he  should  be  able  to  make  it 
appear  that  such  conditions  were  in  existence  at  the  time; 
otherwise  such  service  will  be  insufficient.^     When  the  deposit 

'  Johnson  v.  Monell,  13  Iowa,  300.  But  see  Chickering  v.  Failes,  26  111., 
507,  where  it  is  held  that  acknowledgment  of  service  will  not  be  suf- 
ficient ;  McDaniel  v.  Correll,  19  111.,  226. 

2  See  Ante  Ch.  VI,  Ft.  IV. 

"Wilson  V.  Basket,  47  Miss.,  637. 

♦  Wirtz  V.  Henry,  59  111.,  109. 

»  Clark  V.  Adams,  33  Mich.,  159. 


SERVICE.  57T 

of  a  notice,  addressed  to  the  defendant,  is  by  statute  made 
one  of  the  steps  in  obtaining  constructive  service  by  publica- 
tion, there  is  the  same  necessity  for  a  strict  observance  of  the 
duties  imposed  bylaw,  in  regard  to  the  mailing,  as  there  is  for 
publishing  the  notice  the  requisite  number  of  days.^  So  where 
the  proof  of  service,  in  addition  to  the  publication,  was  that  a. 
paper  containing  a  copy  of  the  notice  published  was  deposited 
in  the  postoffice,  directed  to  two  defendants  composing  a  iirm^ 
by  their  firm  name,  mentioning  the  initials  of  their  Christian 
names,  such  service  was  held  insufficient,  for  the  reason  that  a 
copy  of  the  notice  should  have  been  sent  to  each.  Being 
addressed  to  both,  its  receipt  by  either  was  regarded  as  uncer- 
tain, so  that  it  was  held  prima  facie  void  as  to  both.^ 

§  1356.  Chancery  Proceediugs  in  U.  S.  Court.  — The  substituted 
service  provided  by  state  laws  is  not  allowable  in  suits  2E4 
equity  in  the  United  States  courts  held  witliin  those  states. 
The  manner  of  serving  a  subpceaa  in  chancery  is  regulated  fej 
the  acts  of  Congress  and  the  rules  of  the  United  States  Supreme; 
Court.  The  service  must  be  within  the  district  for  which  the 
federal  court  is  held,  or  it  will  not  confer  jurisdiction  of  the 
person  served.^ 

§  1357.  On  Board  Foreign  Vessel.  —  Process  may  be  legsHy 
served  on  a  defendant  while  he  is  still  on  board  a  British  aaail 
steamer,  after  her  arrival  at  the  dock  in  an  American  porty  but 
before  she  is  moored.^ 

§  1358.  Non-Resident  Temporarily  within  Jurisdiction.  —  Where? 
"  further  notice  "  was  provided  by  statute  for  non-resident 
defendants,^  it  was  held  that  when  such  non-resident  was  actu- 
ally found  and  served  within  the  commonwealth,  lie  was  not 
entitled  to  any  further  notice  ;  but  the  service  would  be 
regarded  as  sufficient.®     This  would  depend,  however,  to  some 

'  Scorpion  S.  M.  Co.  v.  Marsano,  10  Nev.,  .370. 

2  Likins  v.  McCormick,  39  Wis..  313. 

8  Hyslop  V.  Iloppock,  5  Ben.,  .533 ;  McClosky  v.  Cobb,  3  Bona,  IG, 

*  Peabody  v.  Hamilton,  106  Mass.,  217. 

•  Mass.  Gen.  Stat,  Ch.  123,  ^  28;  Id.,  Cli.  126. 
*Recdcr  v.  Ilolcomb,  1"~  Mass.,  93. 

37 


678  PRACTICE    AND    PLEADING. 

extent,  upon  the  circumstances  by  which  he  was  influenced  or 
induced  to  come  within  the  state  where  served.  A  party  to  a 
suit  in  chancery,  pending  in  a  state  where  he  does  not  reside, 
who  comes  within  such  state  for  the  purpose  of  testifying 
before  a  master,  though  he  conies  without  siihpa&mi  testifican- 
duin,  has  been  held  exempt  from  the  service  of  process  during 
his  sojourn  for  that  purpose.^  So,  wliere  a  person  has  been 
fraudulently  enticed  within  the  jurisdiction  of  the  court, 
merely  for  the  purpose  of  obtaining  service  of  process  in  a 
contemplated  suit  against  him,  such  service  maybe  set  aside 
and  vacated  as  irregular.^  But  where  a  citizen  of  another 
state,  claiming  to  have  been  enticed  within  the  territorial  juris- 
diction of  the  court  for  the  purpose  of  obtaining  service,  suf- 
fered judgment  to  go  by  default,  and  afterwards  came  in  and 
asked  to  have  it  set  aside  on  the  ground  of  the  fraudulent 
manner  in  which  service  was  obtained,  the  court  held  that  his 
objection  came  too  late.  It  should  have  been  raised  on  the 
return  of  the  summons.^  Defects  in  regard  to  service  of  pro- 
cess, as  well  as  any  other  steps  taken  to  obtain  jurisdiction  of 
the  party,  may  be  waived  by  voluntary  appearance,*  but  not 
by  special  appearance,  for  the  purpose  of  raising  the  objection 
to  the  process.^  There  must  be  some  act  done  or  word  spoken 
in  court  in  connection  with  the  case.® 

§1359.  Siuulay  or  Legal  Holiday.  —  Service  of  process  on  Sun- 
day or  upon  a  legal  holiday  is  clearly  irregular,  and  may  be 
pleaded  in  abatement  or  set  aside  on  motion.  But  when  the 
case  has  been  allowed  to  go  to  judgment  by  default,  on   such 

'  Dungan  v.  Miller,  37  N.  J.  L.,  182;  Huddesoa  v.  Prizer,  9  Phila.,  65. 

» Baker  V.  Wales,  45  How.  Pr.,  137;  S.  C,  14  Abb.  Pr.  N.  S.,  331;  La- 
grave's  Case,  /d.,  334;  Carpenter  v.  Si^ooner,  2  Saaf,  717;  Heveuer  v. 
Heist,  9  Phil.,  274. 

=*  Marsh's  Adm'rs  v.  Bast,  41  Mo.,  493. 

*  Stewart  v.  Hiberuia  Bk'g  Ass'n,  78  111.,  598;  People  v.  Burton,  65 
K  Y.,  452. 

*  Simcock  v.  First  Nat'l  Bk.  of  Emporia,  14  Kas.,  529. 
«Rhoades?j.  Dclaney,  50  Ind.,  468;  Steinbach  v.  Lesse,  27  Cal.,  295. 


THE    RETURN.  579 

irregular  service,  the  judgment  will  neither  be  held  void  nor 
reversible  on  account  of  the  irregularity.^ 

§  1360.  Reference  to  Other  Chapters.  — Defects  most  frequently 
occur  in  the  constructive  service  of  process,  especially  when  it 
is  by  publication  in  a  newspaper.  Many  instances  of  defective 
service  also  arise  in  notifying  parties  to  bills  and  notes  of  the 
dishonor  of  such  paper.  The  sufficiency  or  insufficiency  of 
the  service  of  original  process  and  other  notices  used  in  prac- 
tice will  necessarily  be  rendered  manifest  by  the  return  of  the 
officer  or  other  person  by  whom  the  service  is  made,  and  will 
accordingly  be  considered  in  the  next  succeeding  part  of  this 
chapter.  To  avoid  useless  repetition  and  reiteration  of  author- 
ities, the  reader  is  referred  to  the  chapters  and  parts  of  chap- 
ters where  those  topics  are  separately  treated.^ 


YIII.  The  Eeturn. 

§  1361.  General  Remarks. 

1362.  Nature  and  Purpose  of  Return— Form  and  Suflaciency. 

1363.  When  Name  of  OfBcer  not  Used. 

1364.  When  Service  without  the  State. 

1365.  Should  Show  Compliance  with  Statute. 

1366.  To  the  Proper  Term. 

1367.  Contents  of  Return. 

1368.  Further  Illustration. 

1369.  Immaterial  Errors. 

1370.  Defects  Cured  by  Recital  in  Judgment. 

1371.  Judgment  by  Default  on  Insulhcient  Return,  Void. 

1372.  Examples  of  Defect  Fatal  to  Judgment. 

1373.  Return  Contradicted  by  Record. 

1374.  Examples  of  Defective  Returns. 

1375.  What  Deemed  Sufiicient. 

1376.  When  Served  on  OtHcer  of  Corporation. 

'  Comer  c.  Jackson,  50  Ala.,  384. 

'SeeCh.  I.,  Pt.  II.;  Ch.  VII.;  Ch.  VI ,  Pt.  IV.;  Po«<,Pt.  VIII. 


5S0  PRACTICE    AND    PLEADING. 

1377.  Inference  from  General  Language  of  Return. 

1378.  Return  Cannot  he  Contradicted. 

1379.  Exceptions  to  Above. 

1380.  Presumptions  in  Favor  of  Return. 

1381.  May  be  Amended. 

1382.  Aided  by  Presumption. 

1383.  Aided  by  Parol  Evidence. 

1384.  Aided  by  Contents  of  Bill. 

1385.  Conflicting  Views  as  to  Impeacbing  Return. 

§  1361.  General  Remarks.  — The  importance  of  the  return  by 
which  the  sufficiency  of  the  service  is  usually  tested,  is  second 
only  in  importance  to  the  service  itself.  Being  a  ministerial 
duty  which  frequently  devolves  upon  an  ignorant,  irresponsible 
deputy,  its  careless  execution  is  often  fruitful  of  vexatious  and 
expensive  delays  in  the  administration  of  justice,  and  where 
it  accurately  recites  an  antecedent  failure  of  duty  in  not  prop- 
erly serving  the  process,  may  drive  the  party  injured  by  the 
neglect,  to  further  litigation,  in  order  to  recover  the  ground 
lost  through  official  negligence  or  incajjacity. 

§  1362.  Nature  and  Purpose  of  Return — Form  and  Sufficiency. — 
The  object  and  purpose  of  the  return  is  to  prove  the  service  of 
the  paper  returned.  The  return  should  be  in  writing  ;  but,  as 
will  be  seen  in  another  place,  this  is  not  an  inflexible  rnle.^ 
When  written,  it  must  be  signed  by  the  person  making  the 
service,  and  if  by  a  deputy  should  be  in  tlie  name  of  the  officer 
for  whom  he  acts,  b}'  the  deputy;  for  the  law  does  not  recognize, 
nor  the  courts  take  notice  of,  tlie  acts  of  a  deputy  sheriff, 
marshal  or  constable,  except  as  the  acts  of  his  superior.^  And 
where  the  record,  after  judgment,  showed  a  return  of  original 
process,  made  in  the  name  of  the  deputy  instead  of  the  sheriff 
himself,  the  judgment  was  declared  void.^  "When,  however, 
the  service  is  within  tlie  county,  by  the  sheriff,  in  signing 
the  same,  it  is  not  necessary  that  his  name  and  title  should 
be  folio tved  by  the  name  of  the  county  within  which  he  acts  offi- 
cially.    The  court  will  be  presumed  to  know  its  own  officers.* 

'  See  Post,  §  1383. 

''Bolard  v.  Mason,  66  Pa.  St.,  138. 

=  Rowley  ».  Howard,  23  Cal.,  401. 

4  Cliittendon  v.  Hobbs,  9  Iowa,  417;  Davis  v.  Burt,  7  Id.,  56. 


THE    KETCRISr.  581 

§1363.  AVheii  Name  of  Officer  not  Used.  — This  rule,  however, 
ap]ilies  onl_y  to  deputies  who  act  for  and  under  the  directions 
of  a  duly  commissioned  officer.  When,  to  meet  an  emergency, 
it  becomes  necessary  for  the  court  to  appoint  a  special  deputy 
or  elisor,  the  necessity  for  the  em]5loyment  of  the  regular 
officer's  name  ceases,  and  tlie  return  is  made  in  the  name  of 
the  special  officer,  by  whom  the  notice  is  served.'  When,  as  is 
frequently  the  case,  the  notice  is  served  by  a  person  who  acts 
in  no  official  capacity  whatever,  but  performs  the  functions  of 
an  officer  in  serving  notice,  at  the  request  of  one  of  the  par- 
ties, it  is  necessary  that  the  return  should  be  verified  by  his 
affidavit,  and  such  affidavit  should  accompany  the  return.^ 
And  when  a  return  so  verified  is  filed  with  the  clerk  of  the 
court,  it  is  so  favorably  regarded,  that  it  will,  at  least,  be  held 
to  satisfactorily  establish  the  fact  of  service,  until  the  same  is 
denied  in  an  equally  solemn  manner,  though  such  sworn  return 
may  be  lost  or  mislaid  by  the  clei-k.^ 

§  1364.  When  Service  without  the  State.  —  When  there  is  per- 
sonal service  of  notice  outside  of  the  state  from  whose  court 
the  same  issues,  the  return  should  be  verified ;  for  the  reason 
that,  by  whomsoever  the  paper  is  served,  whether  an  officer 
or  a  private  person,  it  must  be  regarded  where  the  notice  is 
returnable  as  an  unofficial  act.  If  the  service  is  by  the  sheriff 
of  the  court,  it  cannot  be  proved  by  his  unsworn  certificate, 
because  the  act  was  performed  where  his  official  character  was 
not  recognized.  And  if  it  be  served  by  any  other  sheriflT  or 
officer,  who  is  not  an  officer  of  the  court,  verification  is  neces- 
sary, because  the  service  is  by  one  who  is  unknown  in  the 
court  where  his  certificate  is  ofiered.* 

'  Glencoe  v.  People,  78  111.,  383. 

"^  C.>ffee  V.  Gates,  28  Ark.,  43;  State  Bank  v.  Marsh,  10  Ark.,  129. 

^  Estate  of  Robinson,  0  Mich  ,  137.  Tlie  service  of  notice  of  appeal  may  be 
proven  l)y  affidavit  in  the  appellate  court.  It  has  been  held  of  no  conse- 
quence  that  the  record  failed  to  show  service  of  such  notice,  when  it  was 
supported  by  the  affidavit  of  the  person  serving  the  same.  Mendioca  v. 
Orr,  16  Cal.,  368. 

4  It  should  appear  by  the  return  that  the  servire  was  had  at  a  place  wilhin 
the  limits  prescribed  iu  the  act.     Fisher  v.  Fredericks,  33  Mo.,  612. 


5S2  PRACTICE    AND    PLEADING. 

§  1365.  Should  show  Comi)liance  with  Statute.  —  "Where  juris- 
diction depends  upon  the  service  of  notice,  it  is  necessary  that 
tlie  statute  by  which  the  proceeding  is  authorized  should 
"be  closely  followed,  and  that  the  return  should  show  a  sub- 
stantial compliance  with  its  requirements,  in  all  essential  par- 
ticulars.^ The  time  of  service  should  be  correctly  stated,  and 
where  a  return  stated  that  the  notice  had  been  served  at  "11 
M.,"  it  was  held  defective  and  the  service  to  be  set  aside  on 
motion  made  for  that  purpose.^ 

§  1366.  To  the  Proper  Term,  —  The  original  process  when 
served  should  be  returned  to  the  proper  terra ;  but  if  the  time 
of  holding  the  court  be  changed  by  statute  after  the  issuance 
of  the  summons,  without  requiring  such  writs  to  be  returned 
for  correction,  they  should  be  returned  to  the  next  subsequent 
terni.^  Unless  the  return  day  is  changed  by  statute,  it  remains 
as  fixed  by  law.  Any  alteration  made  by  the  court  or  clerk 
will  not  authorize  a  return  at  a  different  time  than  that  pre- 
scribed.'* 

§  1367.  Contents  of  Return.  —  What  the  written  return  should 
contain,  depends  of  coitrse  upon  the  manner  and  mode  of 
service;  but  whatever  mode  is  adopted,  the  return  should 
state  the  facts  in  detail.  It  is  not  sufficient  to  emploj'  the 
word  "  due  "  to  express  to  the  satisfaction  of  the  court  that  the 
duty  has  been  properly  executed.  "Due  service,"  and  "  duly 
served,"  when  used  in  the  return  of  legal  process,  mean  noth- 
ing, because  they  come  from  an  officer  not  supposed  to  use 
them  advisedly,  as  they  are  expressive  of  a  conclusion  of  law. 
The  sheriff,  when  he  returns  that  the  paper  has  been  duly 
served,  assumes  the  province  of  the  court  in  attempting  to 
determine  what  amounts  to  valid  service.  The  manner  of 
serving  the  process  should  be  described  so  that  the  court  may 
be  able  to  judge  of  its   sufficiency.^     A  return  which  under- 

'  Bendy  v.  Boyce,  37  Tex.,  443. 

*  Ho.'.ges  v.  Brett,  4  Green  (la.),  345;  Milbourn  c.  Fonts,  Id.,  346. 
'Freeman  «.  Thompson,  53  Mo.,  183. 

*  Crowell  v.  Galloway,  3  Neb.,  215. 
*Botsford  v.  O'Connor,  57  111.,  73. 


THE    RETURN.  583 

took  to  state  all  the  necessary  facts  in  the  single  word  "  exe- 
cuted," was  held  insufficient.^  But  it  was  held  in  one  case 
that  the  words  "Received  in  office,  Aug.  22,  1870,"  and  "Exe- 
cuted Aug.  22,  1870,"  followed  by  the  sheriff's  name  and 
title,  and  copied  into  the  transcript  immediately  after  the 
summons  and  complaint,  in  the  absence  of  objections  in  the 
trial  court,  showed  a  sufficient  service  which  could  not  be 
questioned  after  judgment  by  default.^  This  case  is  certainly 
not  in  harmony  with  the  majority  of  those  where  the  same 
question  is  considered,  for  the  reason  that  the  return  does  not 
recite  facts  sufficient  to  enable  the  court  to  judge  of  the  suf- 
ficiency of  the  service.  However,  another  case  from  the  same 
court  is  scarcely  less  at  variance  with  the  current  of  author- 
ity.^ There  it  was  decided  that  a  subpoena  issuing  out  of  a 
court  of  chancery,  directed  to  all  the  defendants,  and  returned 
"executed  on  the  parties,  this  Oct.  1,  1870,  with  copy,"  suffi- 
ciently showed  a  proper  service  of  the  process. 

§1368.  Fiu'ther  Illustration. — The  recital  on  a  return — 
"  Executed  by  delivering  a  true  coj^y,"  with  the  date,  is  cer- 
tainly fuller  and  more  complete  in  its  recitals  than  either  of 
the  two  foregoing  ;  and  yet  this  was  held  insufficient.*  But 
M'here  the  return  was  in  the  words  following  :  "  Executed  on 
the  within-named  J.  J.  M.  this  Oct.  12,  1870,  by  personal 
service;  copy  waived  ; '"  or,  "Executed  31st  March,  1859, 
by  delivering  to  the  defendant  a  true  copy  of  this  writ,  together 
with  the  certified  copy  of  petition,"  ^  in  both  these  cases  it 
was  held  to  be  sufficient,  because  there  was  such  a  description  of 
the  manner  of  executing  the  process  that  the  court  was  ena- 
bled to  determine  whether  the  defendant  had  been  properly 
served. 


1  Merritt  v.  White,  37  Miss.,  438. 
'  Lenoir  v.  Broadhead,  50  Ala.,  58. 
'  Florence  v.  Paschal,  50  Ala.,  28. 
''  Woodlitte  V.  Connor,  45  Miss.,  552. 
"  Milam  v.  SU'ickland,  45  Miss.,  721. 
« Hill  V.  Grant,  33  Tex  ,  132. 


oSi  PKACTICE    AND    PLEADING. 

§  1369.  Immaterial  Errors.  —  A  trifling  variance,  such  as  is 
not  calculated  to  mislead,  between  the  writ  and  the  return, 
would  not  be  sufficient  to  vitiate  the  latter.  As  where  the 
original  notice  was  against  "  Luther  Burt,"  and  the  return  was 
of  service  on  "L.  Burt,"  the  difference  was  held  immaterial.^ 

§  1370.  Defects  Cured  by  Recital  iu  Judgment.  —  It  has  been 
iield  that  a  recital  in  the  judgment  or  decree,  of  due  service  of 
process  upon  the  defendant,  is  sufficient  to  cure  all  defects  in 
the  service  and  return,  of  which  advantage  was  not  taken  at 
or  before  the  trial,  by  objecting  to  the  irregularity.^  In  other 
words,  that  the  judgment  cannot  be  attacked  collaterally,  on 
account  of  irregularity  in  the  process,  provided  it  appeared 
from  the  record  that  any  process  at  all  had  been  served.  This 
doctrine,  which  seems  to  be  evolved  by  a  sort  of  circular  rea- 
soning, where  premises  and  conclusion  are  constantly  changing 
places,  is  maintained  in  the  interest  of  the  finality  of  judg- 
ments. It  is  said  that  the  record  shows  due  service,  and  even 
though  the  judgment  was  by  default,  the  presumption  is  that 
the  question  of  service  and  return  of  process  were  submitted 
to  the  court  and  passed  upon.  Tlie  record  declares  that  the 
defendant  was  properly  served.  Consequently,  that  fact  can- 
not be  collaterally  denied.  But  the  jurisdiction  of  the  court 
to  make  a  record  in  the  case  depends  upon  the  service  of  pro- 
cess. This  requirement  is  met  by  the  assertion  that  jurisdic- 
tion is  shown  by  the  record.  So  the  service  of  process  makes 
the  record,  and  wlien  this  fails,  the  record  may  make  itself  by 
assuming  the  facts  upon  which  its  existence  depends.  The 
court  has  no  jurisdiction  to  hear  and  determine  the  issues 
between  parties-litigant  until  the  defendant  has  been  duly 
served  with  process  ;  yet,  without  due  process,  the  court  may 
decide,  as  a  matter  of  fact,  that  process  has  been  duly  served, 
and  upon  the  jurisdiction  thus  assumed  render  judgment 
against  defendant,  of  which  he  has  no  notice,  and  consequently 
cannot  apj>ear  and  attack  it  by  a  direct  proceeding  until,  per- 

'  Davis  V.  Burt,  7  Iowa,  56;  .Johnson  v.  Jones,  2  Neb.,  126. 
*  Morrow  v.  Weed,  4  Iowa,  77,  87,  and  cases  cited. 


THE    RETURN.  685 

haps,  it  is  too  late.  This  is  the  unfortunate  position  the 
defendant  would  occupy  in  a  case  where  the  service  was  other- 
wise tlian  strictly  personal,  and  the  return  correctly  stated  the 
manner  in  which  the  process  was  served. 

§1371.  Judgment  by  Default  on  Insufficient  Return  Void. — 
Jurisdiction  has  been  fairly  described  as  the  power  of  the 
court  to  act  upon  a  given  state  of  facts,  and  when  such  facts 
are  properly  alleged  before  it  and  the  parties  are  properly 
notified,  to  decide  whether  they  exist  ;  and  the  judgment 
upon  them  is  conclusive  until  reversed  by  a  direct  proceed- 
ing.^ But  when  any  other  mode  of  obtaining  jurisdiction  of 
the  person  is  substituted  for  j^^ersonal  service,  the  statutory 
method  must  not  only  be  followed  in  every  essential  particu- 
lar, but,  unless  the  return  affirmatively  shows  this,  any  judg- 
ment rendered  against  the  defendant,  by  default,  should  be 
treated  as  a  nullity.^  So,  where  a  rule  of  court,  having  the 
force  of  a  statute,  required  the  return  to  show  that  a  copy  of 
the  summons  was  delivered  to  the  defendant,  or,  in  case  of 
his  absence,  was  left  with  a  member  of  his  family,  etc.,  it  was 
held  that,  before  a  service  made  by  leaving  a  copy  of  the  sum- 
mons with  any  one  else  than  the  defendant  himself,  could  be 
held  valid,  it  must  affirmatively  appear  from  the  return  that 
the  person  serving  the  process  could  not  find  the  defendant.^ 

§1372.  Example  of  Defect  Fatal  to  Judgment.  —  In  order  to 
sustain  a  judgment  j9rc»  covfesso,  the  return  of  process,  served 
by  leaving  a  copy  with  another  person,  must  show  that  the 
officer  informed  the  person  with  whom  the  copy  was  left  of 
the  contents  thereof.*  The  return  should  also  show  the  place 
where  the  service  was  made,  and  in  case  of  judgment  by 
default,  an  omission  in  this  respect  will  not  be  sni)pHed  by 
any  legal  presumptions  in  favor  of  jurisdiction.^     In  the  case 

1  Wanzer  v.  Howland,  10  Wis.,  8,  16. 

2  Pollard  v.  Wegener,  13  Wis.,  509;  Knox  o.  Miller,  18  Wis.,  397;  Rape  v. 
Heaton,  9  Wis.,  328. 

sMatteson  c.  Smith,  37  Wis.,  833;  Northrop  «.  Shcphard,  23  Wis.,  513. 

<  Tompkins  ■».  Wiltberger,  56  111.,  385. 

'  Sayles  v.  Davis,  20  Wis.,  303.    The  service  being  by  one  not  an  officer  of 


586  PRACTICE   AND    PLEADING. 

of  Pollard  v.  Wegener,'  the  importance  of  the  return  as  a 
part  of  the  record  is  fairly  illustrated,  and  the  doctrine  of  the 
nnllitv  of  judgments  founded  upon  insufficient  service  is  ably 
maintained.  In  that  case,  the  governing  statute  required  that 
every  subpoena  or  process  for  appearance  should  be  served  by 
giving  the  defendant  "  a  copy  thereof,  or  by  leaving  a  copy 
thereof  at  the  dwelling-ho.use  or  usual  place  of  abode  of  the 
defendant,  with  some  person  of  the  age  of  ten  years  or 
upwards,  to  whom  the  nature  of  such  process  shall  be 
explained."  The  record  of  a  suit  for  divorce,  the  decree  in 
which  was  collaterally  called  in  question,  recited  that,  "  It 
further  appearing  that  said  subpoena  was  duly  served  upon 
said  defendant  by  the-  sheriff  of  said  county,  more  than  ten 
days  before  the  return  day  thereof,"  &c.  The  return  of  the 
officer  was, as  appeared  by  the  record,  in  the  following  words: 
"  I  hereby  certify  that  I  duly  served  the  within  subpoena  by 
leaving  a  true  copy  thereof  at  the  defendant's  last  and  usual 
]3lace  of  residence,  in  said  county,  this — "  &c.  The  return 
failed  to  state  either  that  the  copy  was  left  with  a  person  of 
the  prescribed  age,  or  that  the  contents  of  the  copy  were 
explained  to  the  person  with  whom  the  same  was  left  ;  both 
of  which  were  important  requirements.'-  There  was  no  appear- 
ance in  response  to  the  subjsoena,  and  a  decree  was  rendered 
for  plaintiff,  dissolving  the  bonds  of  matrimony  and  directing 
defendant  to  re-convey  to  plaintiff"  certain  real  estate  conveyed 
by  plaintiff  to  her  in  consideration  of  the  marriage.  It  was 
the  latter  part  of  the  decree  that  was  questioned  in  the  case 
cited,  which  was  an  action  of  ejectment  between  the  divorced 
wife  and  the  grantee  of  the  husband,  who  claimed  title  under 
the  decree.  Dixon,  J.,  in  rendering  the  opinion,  said,  refer- 
ring to  the  earlier  case  of  Rape  v.  Ileaton  :  ^  "  The  broad  and 


the  court,  the  return  was  held  defective,  for  not  stating  that  copy  was  left 
at  a  place  within  the  jurisdiction.     See,  also,  Plgott  v.  Snell,  59  111.,  lOG. 

'  Supra. 

=  Hendlej'  v.  Baccus,  32  Tex.,  328;  Vandiver  v.  Roberts,  -1  W.  Va.,  493. 

'^tupra. 


THE    RETURN.  587 

rational  doctrine  t"hat  we  may,  in  all  cases  wliere  a  decree  or 
judgment  is  relied  upon  as  the  foundation  of  a  legal  right, 
inquire  into  the  facts  which  bv  law  are  made  necessary  to  the 
jurisdiction  of  the  court  or  tribunal  by  which  it  was  pro- 
nounced, and  if  it  appears  that  such  facts  did  not  exist,  disre- 
gard such  decree  or  judgment  as  uiuiuthorized  and  void,  is 
there  asserted,  and,  as  we  think,  maintained  by  a  process  of 
reasoning  wliich  cannot  well  be  answered.  ******** 
Hence,  the  recitals  contained  in  the  record  before  us,  that 
the  plaintiff  in  error  was  duly  served  with  process  of  subpoena 
in  the  action  for  a  divorce,  are  not  now,  and  could  not,  if  the 
record  were  silent  as  to  the  manner  of  the  attempted  service, 
be  conclusive  of  the  fact  that  she  was  so  served.  For  until 
the  court,  by  a  proper  service  of  process,  had  jurisdiction  of 
her  person,  it  was  pow^erless  to  bind  or  conclude  her  upon  that 
or  any  question  which  might  arise  in  the  action."  ^ 

§  1373.  Return  Contradicted  by  Record.  —  In  this  case,  the 
record  invoked  in  support  of  the  title  of  the  husband's  grantee, 
bore  upon  its  face  the  evidence  of  its  own  deficiency.  Its 
recital  of  due  "service,"  was  ilath'  contradicted  by  that  por- 
tion of  the  same  record  where  the  return  was  set  out;  but  the 
court  goes  farther  in  declaring  the  rule,  that  even  when  the 
record  does  not  disclose  the  manner  of  service,  it  may  be 
otherwise  shown,  and  the  judgment  thereby  invalidated. 

§  1374.  Examples  of  Defective  Returns.  — Wliere  the  language 
of  the  return  was  that  there  was  "delivered,"  etc.,  "a  copy  of 
this  writ,  and  a  cop}'  of  the  petition,"  without  stating  what 
petition,  the  return  was  held  insufficient.'  So  where  it  merely 
shows  that  the  copy  was  left  at  a  particular  place,  without 
statin":  to  whom  the  same  was  delivered.^  And  where  it  was 
expressed  in  tlie  following  words:  "Executed  b}^  j'crsonal 
service  ;  or,  executed  on  defendant  in  persuii,"  the  return  was 


'  Pollard  0.  Wegener,  13  Wis.,  572-8. 
^  Tu'.lis  V.  Scott,  38  Tex.,  537. 

^  Melvin  v.  Clark,  45  Ala.,  285.    See,  also,  Rankin  v.  Dulaney.  43  Miss., 
197. 


588  PRACTICE   AND    PLEADING. 

held  defective  for  not  showing  the  delivery  of  copies  as 
required  by  statute.^ 

§  1375.  What  Deemed  Sufficient. — Where  the  statute  required 
the  service  of  process,  by  leaving  a  copy  thereof  posted  at  the 
front  door  of  defendant's  usual  place  of  abode,  it  was  held 
that  the  return  must  not  only  state  that  a  copy  was  posted  at 
such  front  door,  but  that  it  was  left  posted  there.^  But  where 
the  language  of  the  return  was  "executed  personally  with 
original  and  copy,  defendant  claiming  such,"  it  was  held  suffi- 
cient.^ So,  also,  where  the  return  was  in  the  words,  "  delivered 
a  copy  to  defendant  in  person.**  In  brief,  what  is  required  of 
the  return,  is  that  it  shall  contain  a  time  a,i\d  fdl  recital  of 
the  acts  of  the  officer  done  and  performed  in  serving  the 
process.  The  order  in  which  the  facts  are  stated  is  immate- 
rial, provided  everything  requisite  appears  in  the  return. 
Whatever  is  omitted  therefrom  will  be  presumed  not  to  have 
been  done  by  the  officer,  in  making  the  service.' 

§1376.  When  Served  on  Officer  of  Corporation. — When  the 
adverse  party  to  the  proceeding  is  a  corporation,  the  return 
should  state  the  name  of  the  officer  upon  whom  the  service 
was  made.  It  will  not  be  sufficient  if  it  merely  recites  that 
the  corporation  was  served.®  But  when  the  proper  officer  of  a 
corporation  to  be  served  was  the  president,  and  the  return 
recited  that  the  cashier  was  served  instead,  and  as  an  excuse 
for  the  substitution  stated  that  the  president  was  not  to  be 
found  in  the  county  where  the  suit  was  brought,  such  return 
was  held  to  be  sufficient  evidence  of  proper  service.'^ 

§1377.  Inference  from  General  Language  of  Return.  —  Where 
the  return  of  service  in  a  case  arising  under   the  chancery 

1  York  V.  Crawford,  42  3Iiss.,  508 ;  Davis  v.  Patty,  Id.,  509. 

2  Lewis  V.  Botkin,  4  W.  Va.,  533. 
^Presley  v.  Anderson,  42  Miss.,  274. 
^Carter  v.  Daizy,  42  Miss.,  501. 

5  Mitchell  ■».  Greeuwald,  43  Miss.,  167;  Moore  «.  Coats,  /J.,  225;  Naron 
V.  Gwin,  Id ,  346;Eankin  v.  Dulaney,  43  Miss.,  197. 
« Grand  Tower  Mining,  &c.,  Co.  v.  Schirmer,  64  Ills ,  106. 
'  Reed  v.  Tyler,  56  111.,  288. 


THE   RETURN.  589 

practice  was,  in  the  words:  "Served  the  within  named,  by 
leaving  a  true  copy  with  the  within  named  " — there  being 
several  persons  mentioned  in  the  subpoena  who  were  to  be 
served,  it  was  held  that  the  court  would  infer  from  the  lan- 
guage used  in  the  return,  that  a  copy  was  delivered  to  each  of 
the  defeudants  mentioned  in  the  process.^ 

§  137S.  Return  Cannot  be  Contradicted.  —  In  general  the  return 
of  the  officer  cannot  be  contradicted  by  the  parties.  As  it  is 
made,  it  will  be  held,  in  most  cases,  as  conclusive  upon  both 
plaintiff  and  defendant  until  amended.^  At  least,  it  is  held 
that  it  cannot  be  collaterally  impeached,  but  resort  must  be 
had  to  a  direct  proceeding  for  that  purpose.^ 

§  1379,  Exception  to  Above.  —  However,  in  one  case  where  the 
return  showed  due  service  by  leaving  a  copy  of  the  summons, 
etc.,  at  the  usual  place  of  abode  of  defendant,  when,  in  fact,  such 
process  was  left  at  the  residence  of  his  father,  and  defendant 
heard  of  the  judgment  against  him  only  at  the  next  succeeding 
term,  when  he  moved  to  have  it  vacated.  Upon  proving  that  he 
had  not  received  notice  of  the  suit  until  after  judgment,  it  was 
held  that  such  judgment  should  have  been  vacated.^  And  in 
another  case  where  the  return  was  called  in  question,  it  was 
held  that  the  court  might  hear  evidence,  and  decide  whether  or 
not  the  place  at  which  the  service  was  made,  was  defendant's 
residence.^  So,  M'here  suit  was  brought  on  a  judgment  rendered 
in  the  court  of  a  foreign  state,  and  the  return  recited  that  the 
defendant  was  personally  served  with  process,  it  was  held  that 
the  defendant  might  show,  in  direct  contradiction  of  the  record, 
that  he  was  not  so  served,  and  thereby  invalidate  the  judgment 
upon  which  the  suit  was  brought.® 

§1380.  Presumptions  in  Favor  of  Return.  —  But  the  recital  in 
the  officer's  return   that  the  summons  was  personally  served, 

'  Greenman  v.  Ilarvcy,  53  111.,  386. 

'Rowell  V.  Klein,  44  Ind.,  290;  Johnson  v.  Jones,  2  Neb.,  126. 
^  Mueller  v.  Bates,  2  Disney  (Ohio),  318. 
♦  Dasher  v.  Dasher,  47  Ga.,  320. 
6  Bond  V.  Wilson,  8  Kans.,  228. 

«  Knowles  v.  GasUght  &  Coke  Co.,  19  Wall.,  58;  Thompson  v.  Whitman, 
18  Wall.,  457. 


593  PRAUTICE    AND    PLEADING. 

makes  more  than  a  mere  'prima  facie  case  in  favor  of  the 
validity  of  a  judgment  rendered  in  pursuance  thereof.  The 
presumptions  in  favor  of  its  correctness  are  so  great,  that  it 
requires  the  strongest  hind  of  evidence  to  overcome  the  effect 
of  the  simple  statement  in  the  return,  showing  good  personal 
service.  It  is  not  subject  to  rebuttal  by  the  same  evidence  as 
any  statement  of  a  witness,  or  allegation  in  the  pleadings.'^ 

§1381.  May  be  Amended. — Where  anything  is  by  mistake 
or  inadvertence  omitted  from  the  return,  which  is  essential  to 
give  binding  force  to  the  judgment,  it  may  be  supplied  by 
amendment.^  And  such  amendment  may  be  made  in  order  to 
make  the  return  consistent  with  the  facts,  even  after  the  expi- 
ration of  his  term  of  office.^  Neither  is  the  power  of  amend- 
ment limited  to  the  time  before  the  rendition  of  judgment; 
but  the  return  may  be  so  amended  as  to  conform  to  the  facts, 
afterwards.*  Permission,  when  granted,  to  amend  the  return 
on  a  notice,  does  not  go  to  the  extent  of  authorizing  the  officer 
to  alter  or  amend  the  notice  itself  As  where  it  was  a  notice 
of  motion  with  a  blank  space  left  therein  for  the  day  of  the 
next  term  on  which  the  motion  would  be  made,  and  for  the 
name  of  the  mover,  these  blanks  could  not  be  filled  on  pretence 
of  amending  the  return.®  It  may  be  proper  to  remark  that 
noticeof  the  application  to  amend  a  return  is  generally  required. 
l!^ot  so,  however,  when  both  parties,  or  their  attorneys,  are 
present  in  court  when  the  application  is  made.^ 

§  1382.  Aided  by  Presumption.  —  The  return  of  service  of 
notices,  and  even  of  original  process,  may  be  aided  in  divers 
ways  besides  amendment,  when  upon  its  face  it  does  not  appear 
sufficient  to  warrant  the  proceeding  no'ticed.  An  instance  of 
this  kind  is  where  in  a  suit  pending  in  the  United  States  Court 
against  a  corporation,  which  might,  under  authority  of  an  Act 

'  Davant  -o.  Carleton,  53  Ga.,  491 ;  Starkweather  v.  Morgan,  15  Kans.,  274. 

'•'Toledo,  &c.,  R.  R.  Co.  v.  Butler,  58  111.,  323. 

"McClure  «.  Wells,  46  Mo.,  311. 

*Kirkwood  v.  Reedy,  10  Kaus  ,  453. 

'White  V.  Sydenstricker,  6  W.  Va.,  46. 

'National  Ins.  Co.  «.  Chamber  of  Commerce,  69  111.,  22. 


THE    RETURN.  591 

of  Congress,  be  served  through  one  of  its  directors,  and  it 
appeared  from  the  return  only  that  the  marshal  had  served 
the  process  upon  S,  "  reported  to  be  one  of  the  directors,"  &c., 
and  it  being  shown  by  the  record,  on  error,  that  S  was  at  a 
previous  time  one  of  the  directors,  the  court  presumed  in  the 
absence  of  evidence  to  the  contrary,  a  continuance  of  the  rela- 
tion of  director,  from  the  time  shown  by  the  proof,  down  to 
the  time  of  service,  and  accordingly  overruled  the  objections 
to  the  return.^ 

§1383.  Aided  by  Parol  Evidence. — So  when  the  return  is 
lost,  the  service  may  be  proven  by  parol  evidence.^  And 
when  the  return  fails  to  state  all  the  facts  necessary  to  a  good 
and  sufficient  service,  to  prevent  a  failure  of  justice,  the 
service  has  been  permitted  to  be  shown  in  any  other  manner 
to  the  satisfaction  of  the  court.^ 

§  1384.  Aided  by  Contents  of  Bill.  —  So  also,  where  the  return 
recited  that  the  process  was  "executed  on  S.  S.,  executor, 
Mrs.  J.  L.  S.,  executrix,  by  offering  to  each  a  copy,  and  on  Miss 
F.  R.  S.  (and  other  minors)  by  handing  each  a  copy,"  and  it 
was  necessary  that  tlie  guardian  of  the  minors  should  be 
served,  the  above  return  was  held  to  show  sufficient  service, 
it  appearing  from  the  bill  that  Mrs.  J.  L.  S.  was  such 
guardian."* 

§  1385.  Conflicting  Views  as  to  Impeaching  Return.  —  It  seems 
strange  that  in  the  principal  suit,  the  return  of  the  officer 
cannot  be  questioned  or  doubted,  if  he  refuses  to  amend,  yet 
after  judgment,  the  entire  judicial  proceeding,  which  is  based 
upon  such  return,  may  in  defense  to  an  action  thereon,  or  by 
motion  to  set  aside,  be  utterly  overthrown  and  invalidated,  by 
showing  the  falsity  of  its  recitals.  This  is  the  rule,  however, 
which  seems  to  be  established  by  judicial  decisions.^ 

•  Railroad  Company  v.  Brown,  17  Wall.,  445. 
2  Bridges,  v.  Arnold,  37  Iowa,  221. 

2  Kip  V.  Fullerton,  4  Minn.,  473. 
■•  Smith  V.  Paltisoii,  45  Miss.,  619. 

*  Supra,  §  1304  and  cases  cited. 


502  PEACTICE   A2sD    PLEADING. 


IX.  Pleading. 

§  1386.  Division  of  Subject. 

1387.  Necessary  to  Aver  Notice. 

1388.  Action  on  Guaranty. 

1389.  Wlien  Notice  Unnecessary. 

1390.  "Wlien  Facts  are  within  Defendant's  Knowledge. 

1391.  Knowledge  lies  between  the  Parties. 

1392.  AMien  Want  of  Notice  to  be  Averred. 
1395.  Planner  of  Alleging  Notice. 

1394.  Must  Aver  Notice  to  Proper  Party. 

1395.  Should  Show  Strict  Compliance  when  Constructive  Service. 

1396.  In  Due  Time  and  to  Proper  Person. 

1397.  Waiver  or  Excuse. 

1398.  Facts  Plead  According  to  Legal  Effect. 

1399.  Manner  of  Averring  Want  of  Notice. 

1400.  Admission  of  Notice  by  Answer. 

1401.  Consequence  of  Defective  Pleading. 
1403.  Practice  Under  the  Code. 

§1386.  Division  of  the  Subject. — The  first  question  for  con- 
sideration under  this  branch  of  our  subject  is — when  is  it 
necessary  to  aver  in  the  pleadings  that  notice  has  been  given? 
Second,  when  should  the  pleader  aver  locuit  of  notice?  Third, 
how  should  either  notice,  or  its  absence  when  necessary,  be 
averred,  and  Fourth,  how  may  advantage  be  taken  of  either 
a  defective  allegation  in  this  respect,  or  an  entire  omission  of 
the  averment,  when  it  is  material  to  the  issue? 

§1387.  Necessary  to  Aver  Notice. —  The  affirmative  allega- 
tion devolves  upon  the  plaintiff,  when  the  event  upon  which 
the  defendant's  duty  arises  and  the  plaintiff's  right  accrues,  lies 
peculiarly  within  the  knowledge  of  the  latter,  and  the  action 
does  not  lie  without  notice  given.-'  As  where  the  action  was 
on  a  promise  to  pay  such  a  rate  fur  certain  wares  as  any  other 

1  GCom.  Dig.  Pleader  (C,  73). 


PLEADING.  593 

person  would  pay.  it  was  held  that  defendant  was  entitled  to 
no  notice  before  suit,  of  the  rate  that  another  gave,  and  the 
declaration  should  have  contained  an  allegation  of  such 
notice.^  So  where  suit  was  brought  on  a  contract  to  deliver 
so  much  corn,  if  the  plaintiff  approve  of  it  at  the  fair,  it 
was  held  that  defendant  was  entitled  to  notice  of  approval, 
for  until  the  corn  was  approved,  the  contract  was  in  abeyance, 
and  it  was  uncertain  whether  defendant  would  be  required  to 
execute  it  on  his  part;  hence  notice  of  such  approval  should 
be  averred.^  So  also,  in  case  of  a  subscription  of  stock,  to  be 
paid  when  five  thousand  dollars  had  been  raised  for  a  specified 
purpose,  it  was  held  that  notice  was  necessary  to  fix  the  lia- 
bility of  the  subscriber,  as  the  circumstances  on  which  the 
performance  of  the  contract  depended,  was  more  peculiarly 
within  the  knowledge  of  the  promisee  than  the  promisor.^ 
It  was  also  decided  where  defendant  had  agreed  to  re-im- 
burse  plaintiff  for  the  expense  of  a  trip  to  England,  in  case 
plaintiff's  sales  of  certain  machines  did  not  amount  to  suffi- 
cient to  defray  the  same,  that  in  an  action  to  recover  the 
amount  of  such  expense,  notice  to  the  plaintiff  of  the  defi- 
ciency in  the  sum  realized  from  the  sales  of  machines,  should 
have  been  averred.*  So  in  an  action  against  the  drawer  or 
indorser  of  a  negotiable  instrument,  it  is  necessary  to  allege 
demand  and  notice,  or  such  facts  as  will  excuse  notice.^ 

§1388.  Action  on  Guaranty. — In  an  action  brought  on  a 
guaranty,  it  is  not  only  incumbent  upon  the  plaintiff  to  aver  no- 
tice of  the  fact  which  fixes  the  liability  of  the  guarantor;  but  it 
is  necessarj!  to  allege  notice  of  the  acceptance  of  the  guaranty, 

'  Henning's  Case,  2  Croke,  432;  Harris  v.  Ferrand,  Hardres,  30. 

"Brable  v.  Hollywell,  1  Croke,  2.50;   Palgrave  v.  Windham,  1  Str.,   212. 

8  Chase  v.  Sycamore  &  C  H.  R.  Co.,  38  111.,  215. 

*  Watson  V.  Walker,  23  N.  II.,  471.  For  cases  where  averment  of  notice 
is  held  unnecessary,  see  Ilex  v.  Holland,  5  T.  R.,  607;  Lent  v.  Padleford,  10 
Mass.,  230;  Clough  «.  Hoffman,  5  Wend.,  409;  East  v.  Thoroughgood,  1 
Croke,  834. 

*Bhultz   0.  Depuy,  3  Abb.  Pr.,  252;  Harker  o.  Anderson,  21  Wend.,  372; 
1  Cliit.  PI.,  329  and  cases  cited. 
38 


oOi  riiACTIC'E    AND    TLEADING. 

by  which  he  became  contingently  liable  for  the  default  of  the 
other  partj.^  The  necessity  of  this  averment  is  placed  upon 
somewhat  different  grounds  from  that  required  in  the  cases 
hereinbefore  cited;  as  in  most  of  those  cases,  the  notice 
advised  the  obligor  of  a  liability  incurred  under  a  contract  of 
which  he  already  had  notice,  while  the  notice  to  the  guaran- 
tor is  essential  to  complete  the  contract  of  guaranty  itself. 
The  averment  of  a  notice  of  acceptance,  however,  is  not  all 
that  is  required  in  actions  of  this  kind,  When  the  guarantor 
is  entitled  to  notice  of  the  principal  debtor's  failure  to  pay,  and 
that  proper  efforts  have  been  made  to  collect  the  debt  from 
him;  the  declaration  should  contain  proper  averments  to 
this  effect.'^ 

§1389.  When  Notice  Umieoe.-sary.  —  But  an  unconditional 
covenant  to  pay  immediately  on  afailureof  the  debtor  to  dis- 
charge the  obligation  at  the  time  stipulated,  is  not  such  a 
guaranty  as  requires  notice.^  A  distinction  has  also  been 
drawn  between  contracts  to  guarantee,  the  payment  of  money, 
or  the  j^erformance  of  some  duty  where  the  principal  obliga- 
tion remained  in  abeyance  until  theacceptance  of  the  guaranty, 
and  an  unconditional  guaranty  indorsed  upon  a  written  con- 
tract which  was  in  itself  com])lete  at  the  time,  conditioned 
that  the  guarantor  should  be  bound  to  paj'  a  specific  sum 
mentioned,  upon  the  failure  of  the  ])rinoipal  obligor  in  the 
contract  to  faithfully  perform  its  conditions.  In  suits  on 
collateral  obligations  of  the  latter  description  it  has  been  held 
that  as  the  acceptance  of  the  principal  contract  necessarily 
involved  the  acceptance  of  the  guaranty,  notice  of  such  accept- 
ance was  not  requisite.* 

.^'13!'0.  WIiPii  Facts  are  witliin  Defendant's  Kuowleilge. — Notwith- 
standing the  conditional  nature  of  the  obligation  under  which 

'  McCollum  v.  Cashing,  22  Ark  ,  540;  Ivincheloe  v.  Holmes,  7  B.  j\Ion.,  5. 

"Sylvester  v.  Downer,  18  Vt.,  82;  Bebee  v.  Moore,  3  McLean,  387;  Ante 
^  390,  et  sej. 

^Williams  v.  Sprino-s,  T  Iredell,  384:  K.Muble  d.  Willis,  10  Wend.,  374; 
Williams  v.  Granger.  4  Day.  444;  Ante  Vh    III.,  Pt.  II. 

■•Davis  Sewing  ^lucliine  Co.  o.  Jones,  01  Mj.,  409. 
^n^eCh.  Ill,  Pt.  II. 


PLEADING.  595 

defendant's  indebtedness  accrues,  if  tlie  facts  and  circum- 
stances upon  which  his  liability  to  plaintiff  depends,  are  as 
much  within  his  knowledge  as  that  of  the  plaintiff,  or  he  has 
the  means  of  informing  himself  in  regard  to  such  facts  and 
circumstances  from  a  definite  known  source,  other  than  by 
information  from  the  plaintiff,  he  is  not  entitled  to  claim 
notice  from  the  plaintiff,^  and  consequently,  in  such  case  an 
averment  of  notice  would  be  unnecessary.  As  when  the 
obligor  assumes  to  pay  when  A  marries,  returns  into  the  king- 
dom, or  performs  a  certain  journey.  Here  the  liability 
depends  upon  the  act  of  a  third  party,  which  lies  in  the 
defendant's  cognizance  as  well  as  the  plaintiff's,  and  he  is 
bound  to  take  notice  at  his  peril."'  So  if  he  assumes  to  pay  so 
much  as  A  shall  name;  to  pay  if  A  does  not  pay;  or  to  pay 
so  much  for  every  acre  above  twenty,  when  A  measures  them, 
it  has  been  held  that  notice  would  not  be  required  before  suit.^ 
So,  also,  in  an  action  for  services  rendered,  it  is  never  deemed 
necessary  to  give  notice  to  defendant  of  the  rendition  of  such 
services.'' 

§  1391.  Knowledge  Lies  between  the  Parties.  —  When  the  cause 
of  action  arises  upon  the  performance  of  some  act  alleged  to 
have  taken  place  between  the  parties  themselves,  there  is  the 
strongest  reason  for  dispensing  with  notice  from  the  obligee 
to  the  obligor.  As  where  the  action  was  debt  for  freight,  on  a 
charter  party,  and  the  goods  were  obliged  to  have  been 
delivered  to  the  defendant  himself,  it  was  held  that  plain- 
tiff need  not  aver  notice  of  the  delivery.'' 

§  1392.  Wheu  Want  of  Notice  to  be  Averred.  —  It  will  prob- 
ably be  sufficient  to  state  that  the  want  of  notice  should  be 
pleaded  in  every  proper  case  in  which  it  is  omitted  and  the 
declaration  does  not  show  upon  its  face  that  notice  was  neces- 
sary.  To  undertake  to  illustrate  by  examples,  what  are  proper 

•  Lamphere  V.  Cowen,  42  Vt.,  175;  Dix  v.  Flanders,  1  N.  H.,  246;  Holwrt 
V.  Hilliard,  11  Pick.,  14H. 

'Com.  I)i^.  Pleader,  C,  75;  Normanvill  v.  Pope,  2  Cro.,  137. 
'Com.  Dijr.  PI.  C.,  75;  Bumel  v.  Wood,  2  Roll.,  22. 

*  Wilson  V.  School  Dist.  No.  4,  32  N.  II.,  118. 

'  Dodd  V.  Atkinson,  cited    Com.  Dig.  PI.  (C.,  75). 


596  PRACTICE    AND    PLEADING. 

cases,  would  merely  be  to  go  over  the  ground  already  trav- 
ersed, in  endeavoring  to  show  when  notice  should  be  averred, 
and  when  its  averment  w^as  unnecessary. 

§  1393.  Planner  of  Alleging  Notice,  —  In  discussing  the  man- 
ner of  pleading  notice  or  loant  of  notice  it  wdll  be  necessary 
to  show  what  constitutes  a  good  and  sufficient  notice,  for  it  is 
only  by  alleging  with  reasonable  particularity,  the  facts  con- 
stituting such  notice  as  the  case  requires,  that  the  matter 
may  be  brought  properly  before  the  court  or  jury.  Especially 
under  the  code  &\\o\x\(\.  facts  be  pleaded  as  contradistinguished 
from  conclusions  of  law.  The  pleading  would  therefore  be 
insufficient  on  its  face  if  it  merely  alleged  that  "  lawful  notice" 
or  "notice  as  required  by  law"  was  given,  without  stating  to 
whom  the  same  was  given,  or  without  alleging  sufficient  to 
show  that  the  notice  was  reasonable  in  point  of  time.  As 
where  a  bill  of  sale  in  the  nature  of  a  mortgage  was  given 
with  a  stipulation  for  mortgagor  to  retain  possession  and  that 
it  was  to  be  void  if  the  sum  secured  was  paid  on  a  specified 
day,  unless  the  mortgagee  gave  notice  of  his  desire  for  ear- 
lier payment,  when  the  same  should  be  paid  at  the  time  for 
which  the  notice  was  given,  or  possession  was  to  be  surren- 
dered. Notice  of  demand  for  earlier  payment  was  alleged 
as  having  been  given  on  the  same  day  the  possession  was 
demanded,  without  stating  the  hour,  and  the  averment  was 
held  insufficient,  for  the  reason  that  it  could  not  be  deduced 
therefrom,  that  the  notice  was  reasonable.^  So  if  A  promises 
to  pay  to  B,  before  the  end  of  a  fair,  as  much  as  B  disburses 
at  such  fair,  in  an  action  by  B  on  such  promise  he  ought  to 
allege  notice  given  of  such  disbursements,  before  the  end  of 
the  fair,  otherwise  he  will  be  too  late.^ 

§  1394.  3Iust  Aver  Notice  to  Proper  Party.  —  It  should  also 
appear,  either  by  direct  averment  or  necessarj^  intendment, 
that  the  alleged  notice  was  given  to  the  proper  party.  As, 
for  example,  where  the  action  is  on  a  breach  of  condition  to 

1  Rogers  v.  Mutton,  7  Hurl.  &  Nor.,  733. 

2  Com.  Dig.  PI.  C,  74. 


PLEADING.  697 

repair,  upon  notice,  the  allegation  should  l)e  that  such  notice 
was  given  to  him  who  had  the  entire  interest  in  the  premises, 
and  not  to  an  under  lessee.^ 

§  1395.  Should  Show  Strict  Compliance  when  Constructive  Notice. 
—  Wiien  any  other  form  of  service  is  substituted  by  statute 
for  that  of  personal  delivery  to  the  party  to  be  affected,  the 
pleading  should  show  a  strict  compliance  with  such  statutory 
form.  As  where  service  by  mail  was  authorized  by  statute, 
it  was  held  that  it  must  appear  by  the  pleading  that  the  notice 
■was  deposited  in  the  postoffice,  directed  to  the  party,  his 
agent  or  attorney,  at  his  place  of  residence,  with  full  postage 
paid  thereon.  The  allegation  that  it  was  "mailed"  would 
not  be  sufficient.^ 

§  1396.  In  due  Tinje  and  to  Proper  Person.  —  It  has  been  held 
however,  under  the  common  law  practice,  in  a  suit  on  a  bill, 
against  the  indorser,  that  a  general  allegation  of  notice  of 
demand  and  refusal  would  be  sufficient.'^  But  it  is  laid  down 
as  a  rule  by  the  highest  authority'  upon  common  law  pleading, 
that  "  it  ouglit  to  appear  that  notice  was  given  in  due  time 
and  to  a  proper  person."*  It  is  also  declared  that  where  no 
notice  whatever  has  been  given,  the  absconding  of  the  party, 
or  other  circumstances,  should  be  stated  as  an  excuse  for  the 
want  of  notice.  And  even  where  there  has  been  a  justifiable 
delay  in  giving  the  notice  at  the  regular  time,  though  some- 
times the  facts  excusing  the  delay  are  allowed  to  be  given  in 
evidence  under  the  averment  that  notice  was  given,  it  is 
regarded  as  the  better  practice  to  state  the  facts  of  the  excuse.^ 
This  rule  is  more  explicitly  laid  down  in  cases  decided  under 
the  codes  of  practice  of  several  of  the  states,  and  is  generally 
followed  wherever  the  code  has  been  adopted. 

§  1397.  Waiver  or  Excuse.  — In  an  action  against  the  indorser 
of  a  note,  under  an  allegation  of  demand  and  notice,  it  was 

1  8te\vton  v.  Cushe,  Yel.,  37. 
»  Clark  V.  Adams,  33  Mich.,  159. 
•'  Boot  V.  FrankHn,  3  .Johns.,  307. 
*l  Chit.  PI.,  328. 
M  Chit.  PI.,  328-9. 


598  PKACTICE    AND    PLEADING. 

held  that  the  plaintiff  could  not  introduce  evidence  tending 
to  prove  the  absence  of  the  indorser,  as  an  excuse  for  not  giv- 
ing such  notice.  The  grounds  of  excuse  upon  which  plain- 
tiff relied  were  regarded  as  facts  constitutive  of  Ids  cause  of 
action,  and,  therefore,  such  as  it  was  necessary  to  allege  in 
order  to  lay  a  foundation  for  the  evidence.^  So,  in  England, 
it  is  a  rule  of  pleading  that  a  waiver  of  notice  made  before 
dishonor,  or  other  facts  excusing  notice  of  the  dishonor  of 
commercial  paper,  cannot  be  proved  under  an  allegation  of 
due  notice.'^  Some  of  the  earlier  cases  in  this  country,  espe- 
cially in  Massachusetts  and  Connecticut,  have  decided  the 
question  the  other  way,  and  admitted  evidence  of  waiver  of 
notice,  or  in  excuse  for  the  want  of  notice,  under  an  allega- 
tion that  notice  was  given.^  But  in  the  former  state,  where 
this  manner  of  pleading  was  recognized  in  cases  involving 
notice  of  the  dishonor  of  bills  and  notes,  in  one  case  it  was 
regarded  as  exceptional,  and  not  applicable  to  other  executory 
agreements.^  The  conflict  upon  this  question  is  not  confined 
to  the  courts;  but  there  seems  to  be  a  difference  of  opinion 
between  the  text  writers  as  to  which  is  the  rule  in  the  United 
States.  Mr.  Daniel,  in  his  recent  work  on  Xegotiable  Instru- 
ments, regards  the  established  doctrine  as  being  in  harmony 
with  the  Massachusetts  cases  cited,^  while  Mr,  Edwards,  who 
may  be  looked  upon  as  a  thoroughly  competent  exponent  of 
the  practice  under  the  Xew  York  code,  declares  that  in  plead- 

'  Pier  V.  Heinrichoffen,  52  Mo.,  333.  See,  also,  Garvey  v.  Fowler,  4  Sand., 
6G5;  Sliultz  V.  Depuy,  3  Abb.  Pr.,  252;  Lumbert  v.  Palmer,  29  la.,  104;  Cole 
D.  Wintercost,  12  Texas,  118;  Curtis  v.  State  Bk.,  6  Blackf.,  312. 

'^  Burgh  V.  heg^e,  5  M.  &  W..  418;  Murray  i\  King,  5  B.  &  Aid.,  165;  Allen 
V.  Edmundson.  17  L.  .!.,  N.  S.,  Exch.  of  PI.,  291 ;  S.  C,  2  Exch..  719. 

*  City  Bk.  V.  Cutter,  3  Pick.,  414 ;  Taunton  Bank  v.  Richardson,  5  Id.,  436 ; 
Jones  ?;.  Fales,  4  Mass.,  245;  North  Bank  o.  Abbot,  13  Pick.,  465;  Harrison 
v.  Bailey,  09  Mass.,  620;  Kent  v.  Warner,  12  Allen,  5(il ;  Xortou  v.  Lewis,  2 
Conn.,  478 ;  Camp  v.  Bates,  11  Conn.,  487 ;  Windham  Bk.  v.  Norton,  22  Conn., 
213.  See,  also,  Williams  v.  Matthews.  3  Cow.,  2."")2;  Ogdon  o.  Cowley,  2 
Johns.,  274. 

4 Colt?).  Miller,  10  Cusli.,  51. 

»2  Daniel  Negot.  Inst.,  g  1048. 


PLEADING.  599 

ing  notice,  "  the  complaint  must  state  the  facts  constituting 
the  cause  of  action  on  which  plaintiff  seeks  to  recover."  A 
waiver  of  notice  cannot  be  proved  under  an  allegation  of  due 
notice,'  This  seems  to  be  in  substantial  conformity  to  the 
spirit  of  any  system  of  pleading,  which  requires  a  statement 
oi  facts,  and  not  conclusions  of  law. 

§  1398.  Facts  Plead  According  to  Legal  Effect.  —  Though  it  is 
necessary  to  plead  the  facts  upon  which  a  party  relies,  it  is 
neither  necessary  nor  permissible,  under  any  good  system  of 
pleading,  to  state  the  evidence  by  which  those  facts  are  to  be 
established.^  Equal  care  should  be  observed  to  avoid,  on  the 
one  hand,  the  averment  of  conclusions  of  law,  while  endeav- 
oring to  plead  facts  according  to  their  legal  effect  ;  and,  on 
the  other,  the  statement  of  evidence,  instead  of  the  facts  to  be 
proved.  In  pleading  notice  given  to  an  agent,  the  averment 
should  be  of  notice  to  the  principal.  It  may  reasonably  be 
doubted  whether  an  averment  of  notice  to  an  agent  would  be 
sufficient  to  admit  evidence  upon  that  point,  against  the  objec- 
tion of  the  other  party,  unless  there  were  other  allegations 
which  would  show,  not  only  that  it  was  given  to  an  agent, 
but  to  the  agent  to  whom  it  might  be  given  so  as  to  bind  the 
principal.^  Whether  the  notice  be  served  upon  the  principal 
or  the  agent,  the  legal  effect  is  notice  to  the  principal.  This 
is  the  fact  to  be  proved.  The  manner  in  which  it  was  served 
is  the  evidence,  whether  that  be  Vjy  giving  it  to  an  agent 
authorized  to  receive  it,  or  to  the  principal  in  person. 

§  1399.  Manuer  of  Averring  Want  of  Notice.  —  An  aveiment of 
want  of  notice  should  be  no  less  clear  and  unambiguous  than 
is  required  when  notice  is  alleged.  It  must  be  an  averment 
of  an  issuable  fact,  not  involved  in  an  issue  of  law.  As  where 
the  answer  was  a  denial  of  knowledge,  information  or  belief 
as  to  whether  notice  had  been  given  as  required  htj  law, 
it  was  held  that  this  merely  raised  an  issue  as  to  the  laioful- 

'Edw.  on  Bills,  6:J«. 
» 1  Chit.  PL,  56G. 
3See.4n<eCh.  V.  Pt.  II. 


GOO  ITiACTICE    AND    PLEADING. 

ness  of  the  notice,  which  was  not  a  proper  question  to  be  sub- 
mitted by  the  pleadings.  "  The  fact  as  to  whether  notice  had 
been  given,  was  lost  sight  of,  and  consequentlj  the  pleading 
was  bad.^ 

§  1400.  Admission  of  Notice  by  Answer.  —  But  where  the 
answer  admits  notice,  reasoncihle  notice  will  be  intended,  and 
the  questicm  ceases  to  be  one  for  the  jury,,  whether  the  notice 
was  reasonable  or  unreasonable.^  A  denial  of  any  notice 
whatever  would  be  sufficiently  comprehensive  to  include  any 
issue  upon  that  question  presented  \ij  the  plaintiff,  and  would 
therefore  be  regarded  as  sufficient,  without  entering  into  par- 
ticulars. And  when  the  action  was  brought  on  a  joint  contract, 
an  allegation  by  defendants  that  notice  was  not  given  them, 
would  be  sufficient  without  alleging  that  notice  was  not  given 
either  of  them.^  Although  it  would  doubtless  be  held  other-- 
wise  when  the  contract  was  both  joint  and  several,  or  where 
the  obligors  were  partners,  and  the  transaction  was  in  connec- 
tion with  the  business  of  the  partnership. 

§  1401.  Consequences  of  Defective  Pleading. —  As  to  the  conse- 
quences of  defective  pleading  in  cases  where  averment  of 
notice  is  necessary,  there  seems  to  be  no  general  rule  which  is 
universally  recognized.  Lord  Mansfield  lays  down  the  dis- 
tinction between  the  q.hw^qq^xqwqq's,  oi -du  defective  averment  2l\\A. 
no  avernieat  of  notice,  thus:  The  former  he  declares  may  be 
cured  by  verdict,  because  to  entitle  plaintiff  to  recover,  *'  all 
circumstances  necessary,  in  form  or  substance,  to  complete 
the  title  so  imperfectly  stated,  must  be  proved  at  the  trial — 
it  is  a  fair  presumption,  after  verdict  that  they  were  proved;" 
while  as  to  the  latter  he  says:  "AVhen  the  plaintiff  totally 
omits  to  state  his  title  or  cause  of  action,  it  need  not  be 
proved  at  the  trial,  and  therefore  there  is  no  room  for 
presumption.^      The    case    cited   was    an    action    against    an 

'  Seeding  v.  Bartlett,  35  Mo.,  90. 
■■'  Larabee  v.  Searsport,  42  Me.,  202. 
'Watson  v.  Walker,  23  X.  H.,  471. 
*Rushton  V.  Aspinwall,  1  Douglas,  ().')3. 


PLEADING.  601 

indorser,  and  the  plaintiff  failed  to  allege  demand  and 
notice,  wherefore  it  was  argued  that  no  proof  at  the 
trial  could  make  good  a  declaration  which  contained  no 
ground  of  action  on  its  face,  and  it  was  accordingly  held 
that  judgment  for  plaintiiF  on  such  a  declaration  should  have 
been  arrested.  The  doctrine  announced  by  the  learned  jurist 
Avould  seem  to  apply  with  equal  force  to  actions  on  contracts 
of  any  kind  where  notice  was  a  condition  precedent,  and  con- 
sequently necessary  to  the  statement  of  a  cause  of  action; 
but  Mr.  Chitty  in  his  incomparable  work  on  pleading,  states 
the  Englisli  rule  under  the  common  law  practice  in  these 
words:  "  The  omission  of  an  averment  of  notice  will  be 
fatal  on  demurrer,  or  judgment  by  default;  but  may  be  aided 
by  a  verdict,  unless  in  an  action  against  tJie  drawer  of  a 
hill,  when  the  omission  of  the  averment  of  notice  of  non- 
payment of  the  acceptor  is  latal  even  after  verdict.'"  So  in 
this  country,  substantially  the  same  reasoning  employed  by 
Lord  Mansfield  in  snj)])ort  of  the  doctrine  that  defective  or 
iTUtccurate  averments  would  be  cured  by  a  verdict,  is  put 
forth  to  cure  an  entire  omltision  of  any  allegation  whatever.' 
There  it  was  decided  that  even  where  an  averment  of  notice  of 
a  condition  precedent  was  necessary,  and  was  omitted,  the 
omission  was  cured  by  verdict,  because  it  ivas  a  question 
involved  in  the  isstie,  and  mast  be  j? resumed  to  have  heen 
proved,  though  not  alleged? 

§1402.  Practice  Under  tlie  Ctxle.  —  In  those  states  wliere  the 
code  has  been  adoj^ted,  the  practice  differs  materially  from 
that  at  common  law,  and  in  nothing  more  than  in  the  numncr 
of  stating  a  cause  of  action,  in  the  initial  pleading.  The 
codes  not  only  differ  from  the  common  law  practice,  but  in 
many  particulars  differ  trom  each  other;  but  very  few,  if  any 
of  them,  leave  room  for  the  indulgence  of  presumptions  by 
the  court  as  to  the  proof  of  facts  not  alleged  in  the  pleadings. 

U  Chit.  Plead.,  :329;  ic?.,  081. 
« Colt  «.  Root,  17  Mass.,  239. 
'Crocker  u.  Gilbert,  9  Gush.,  131. 


602  PRACTICE    AND    TLEADING. 

In  some  of  them,  at  least,  the  omission  of  ipaterial  allegations 
may  be  supplied  by  amendment,  to  conform  the  pleadings  to 
the  proof.  If  notice  is  a  fact  necessary  to  constitute  a  cause 
of  action,  its  omission  will  affect  the  case  at  all  its  stages, 
precisely  as  it  would  be  affected  by  the  omission  of  any  other 
material  averment,  want  of  which  would  render  the  pleading 
demurrable  on  the  ground  that  it  did  not  state  facts  sufficient 
to  constitute  a  cause  of  action,  or  a  defense  to  an  action. 


INDEX. 

[the  references  are  to  the  sections.] 


ABANDONMENT, 

defeats  notice  by  possession,  2!)6. 
ABSENCE  OF  FUNDS, 

held  to  excuse   want  of    notice  ot    dislionor  of    commercial    pa- 
per, 1001. 

held  not  to  excuse  want  of  notice  of  dishonor  of  commercial  paper, 
1002-1014. 
ACCEPTANCE, 

of,  proposdls,  notice  of,  378-385. 

continuing  and  limited  otiers,  378. 

necessity  of  notice,  379. 

time,  380. 

offer  by  auctioneer,  381. 

by  mail,  383. 

continuing  until  accepted,  or  rejected,  or  withdrawn,  385. 

of  guaranty,  notice  of,  390-408. 

See  Guaranty. 

of  rent  by  unauthorized  person,  waiver  of  notice  to  quit  not  pre- 
sumed from,  649. 
of  surrender  of  possession,  waiver  of  notice  to  quit,  643. 
ACCEPTOR  OF  BILL, 

notice  of  dishonor  given  by,  710-711. 

bankruptcy  of,  no  excuse  for  failure  to  give  notice,  771. 

ACCOMMODATION  PAPER, 

renewal  of  by  partner,  held  such  prior  transaction  as  to  entitle  payee 
to  notice  of  dissolution,  511. 
when  drawer  of,  not  entitled  to  notice  of  dislionor,  997-998. 
when  drawer  of,  entitled  to  notice  oi"  dishonoi",  999, 1018. 
ACCOUNT, 

assignment  of  balance  due  on,  notice  required,  443. 
notice  should  be  given  of  intention  to  examine,  1207. 
ACCURACY  OF  DESCRIPTION, 

substantial  and  not  teclinical,  required  in  notice  to  quit,  638-639. 
same  in  notice  of  motion,  1193. 
ACKNOWLElXiMENT, 
of  deeds,  112. 
necessity  of,  125-140, 


604  INDEX. 

officers  before  whom  may  l>e  in.-ule,  1  "0-136. 

lack  of  uniformity  in  statutes  desienating,  131. 

when  land  lies  in  another  state,  132. 

justice  of  the  peace,  13o. 

■when  a  party  in  interest,  134. 

defeat  must  appear  on  face,  135. 

officer  de  facto,  136. 

of  service  of  notice,  of  taking  depositions,  effect  of,  1251, 1354. 
ACQUIESCENCE, 

of  principal  after  notice,  releases  agent,  069. 
ACTUAL  KNOWLEDGE, 

of  prior  rights,  most  direct  manner  of  binding  purchasers,  65. 
question  of  fact  for  the  jury.  85-86,  88,  91. 

may  be  imputed  to  purchaser  who  avoids  knowledge,  91. 

ACTUAL  NOTICE, 

conflict  of  authority  as  to  what  is,  1. 
causes  of  apparent  conflict,  deflnitions  of,  3. 
distinction  between  and  knowledge,  3-4. 
different  kinds  of,  5. 
express,  5-7. 

direct  information,  7. 
different  sources  of,  28-3;j. 
must  be  more  than  vague  statement,  29. 
implied,  8-27. 

distinction  between  and  express,  8. 

distinction  betAveen  and  constructive,  8 

will  bind  purchaser,  who  has  not  certain  knowledge,  9. 

from  circumstances  sufficient  to  put  upon  inquiry,  10,  13-35. 

when  purchaser  affected  by,  11. 

amounts  to  imputation  of  knowledge,  11-13. 

negligence  for  purchaser  not  to  inquire,  17. 

from  secrecy  of  transaction,  20. 

from  voluntaiy  ignorance,  11. 

seeing  copy  of  deed,  13. 

recitals  in  muniments  of  title,  15-17. 

possession  under  claim  of  title,  16. 
held  iusuflicieut,  14. 

knowledge  ot  non-payment  of  purchase  price,  19. 

legal  title  and  equitable  interest  in  diflerent  persons,  18. 

discharge  of  mortgage  by  one  other  than  mortgagee,  30. 

notice  of  trust  affecting  property  purchased,  31. 

insolvency  of  vendor,  acting  as  trustee,  33. 

inadequacy  of  price,  23-24. 

relationship  between  grantor  and  grantee,  25. 

from  information  sufficient  to  put  upon  inquiry,  38-39. 

degree  of  certainty  rec^uired,  30. 


INDEX.  605 

ACTUAL  NOTICE,  Continued. 

to  agent  is  actual  notice  to  principal,  31-33. 

amounts  to  more  than  constructive  notice  to  principal,  33. 
necessary  to  affect  purchasers  of  negotiable  paper,  80-94. 

payment  of  lost  bill  stopped  by  advertisement,  insufficient,  81. 
holder  of  bill  fraudulently  circulated  only  affected  when  grossly 

negligent,  82. 
negligence  and  bad  faith,  questions  of  fact,  83. 
purchaser  protected,  rule  laid  done  by  Story,  84. 
held  same  as  knowledge,  but  knowledge  a  question  of  fact,  85. 
facts  which  excite  inquiry  held  inadmissible  in  evidence,  86. 
purchaser  bound  to  inquire,  when  facts  excite  inquiry,  87. 
circumstances  sufficient  to  put  a  prudent  man  upon  inquiry,  insuf- 
ficient, 87. 
bad  faith  on  part  of  purchaser,  inference  of  fact  and  not  of  law,  88, 

note  1. 
stolen  securities — avoidance  of  knowledge,  80. 
inquiry  excited  by  inspection  of  paper,  sufficient,  90. 
general,  or  implied  notice  held  sufficient,  91. 
circumstances  must  be  of  suspicious  character,  92. 
only  purchasers  who  have  paid  value  protected,  93. 
defects  apparent  on  face  of  instrument,  94. 
of  unregistered  instruments. 

See  Unregistered  Instruments. 
to  purchasers,  evidenced  by  possession  of  property,  275-277. 

See  Possession. 
notice  from  title  papers,  equivalent  to,  308. 
See  Title  Papers. 
of  assignment  of  choses  in  action,  inferred  from  circumstances, 
438-439. 

See  Assignment. 

dissolution  of  partnership,  when  new  customer  entitled  to,  522. 

may  be  inferred  from  facts  sufficient  to  put  upon  inquiry,  507. 

See  Dissolution  op  Partnership. 

ADDRESS, 

of  notice  of  dishonor  of  commercial  paper,  7(57. 

may  be  to  residence  or  place  of  business,  890-891. 
of  written  notice  to  quit,  what  sufficient,  030. 

ADJOURNMENT, 

of  judicial  sale  without  new  publication,  1092. 

of  taking  depositions,  notice  after  expiration  of  hour  originally  fixed, 
1256. 
ADMINISTRATOR, 

joint,  when  cannot  waive  notice  of  dishonor,  763. 


606  INDEX. 

ADMISSION^, 

when  it  will  amount  to  waiver  of  notice,  1328,  1400. 
of  drawer  or  indorser,  when  will  not  excuse  notice,  964,  968. 
ADYERTISEMEInT, 

of  dissolution  of  partnership,  504-508,  513-519. 
will  onl  J'  affect  old  customer  when  seen  by  him,  504. 
circulation  of  the  paper  where  customer  does  business  not  sufficient 

to  charge  him,  505. 
reading  papers  not  conclusive,  50G. 
inference  drawn  from  publication  of,  507. 
what  are  prior  dealings — who  is  old  customer,  508-512. 
will  affect  new  customer,  513. 
time  of  publication  of,  514. 
publication  of  in  newspaper,  515. 
where  should  be  published,  51G. 
selection  of  medium  of  publication,  517. 
manner  of  publication  of,  open  to  inquiry,  518. 
English  and  American  doctrine,  publication  held  not  absolutely 
essential,  519. 
ot  original  i^rocess,  1029-1085. 

See  Process,  Original. 
of  judicial  sales,  108(5-1104. 

See  Judicial  Sales. 
of  non-judicial  involuntary  sales,  1105-1131. 

See  Nox-JUDiciAL  IxvoLr:NTARY  Sales. 

AFFIDAVIT, 

necessary  for  publication  of  notice,  1032-1048. 

See  Process,  Original. 
for  publication  of  process,  averments  in  not  conclusive,  1083. 

AGENCY, 

Notice  of,  651-671. 

principal's  liability  when  agent  exceeds  authority,  651. 

secret  instruction  will  not  limit  general  authority,  652. 

limited  by  written  authority,  653. 

by  representations  of  agent,  bind  principal,  654. 

to  affect  partv  dealing  with  agent,  must  be  prior  to  transaction,  655. 

principal  bound  by  agent's  acts  in  excess  of  authority  by  letter  of 

attorney,  656. 
by  contents  of  letter  of  attorney,  657. 
public  and  private  restriction  of  authority,  658. 
agent's  authority  limited  by  law,  659. 
when  parties  bound   to   inquire   into  extent  of  agent's  authority 

660-662. 
distinction  between  agency,  general  and  special,  663. 


INDEX.  607 

AGENCY,  Continued. 

transactions  requiring  scrutiny  of  agent's  authority,  664. 
avoidance  of  knowledge  of  limitation  of  agent's  authority,  665. 
to  negotiate  bills  and  notes,  6G6. 
efl'ect  of  subsequent  ratification  with  notice,  667. 

binds  principal,  608. 

silent  acquiescence  releases  agent,  669. 
contracts  in  name  of  agent  binding,  670. 
principal   bound,  though    concealed   or    revoked — husband  and 

wife,  671. 
must  extend  to  duty  undertaken  to  bind  principal,  620. 
AGENT, 

acts  of  governed  by  notice  to  principal,  551. 
Ifotice  to,  31-33,  672-695. 

governed  by  the  rules  applicaljle  to  actual  notice,  31-33. 

is  notice  to  principal,  672. 

general  applicatiou  of  the  rule,  673. 

effect  of,  depends  oq  nature  of  agency,  674. 

executive  officer  of  a  bank,  675. 

sufficient  to  put  principal  on  inquiry — trustees,  676,  note  3. 

agent's  unlawful  acts,  principal  charged  with  notice  of,  677. 

bind  principal  to  those  misled  by  principal's  acts,  678. 
when  husband  of  the  principal,  679. 

confined  to  transactions  in  which  he  is  active,  680. 
to  one  of  several  sufficient,  681. 
when  one  of  the  directors  of  a  bank,  683. 

corporation  not  afl'ected  with  every  fact  known  to,  683. 
joint  purchasers  do  not  sustain  relation  of  principal  and  agent,  684. 
is  the  same  kind  of  notice  to  principal,  685. 
of  agent,  insufficient,  686. 
place,  manner  and  time  of  acquiring  knowledge,  687. 

whether  knowledge  present  to  the  mind  of  agent  at  the  time  the 
controlling  circumstance,  688. 

when  not  necessary  to  be  acquired  during  agency,  689. 
agent's  duty  to  communicate  to  principal,  690. 
where  authority  depends  upon  ratification,  691. 
when  attorneys,  and  cannot  be  disclosed  without  broach  of  confi- 
dence, 693. 
executor  and  administrator,  693. 
to  trustee  l)efbre  (creation  of  trust,  094. 
of  torts  of  other  agents  and  servants,  695. 
of  dissolution  of  partnersliip,  502. 
of  dishonor  of  commercial  paper,  743-750,  754. 
See  Bills  and  Notks. 

notice  of  dishonor  of,  to  whom  given. 
time  of  giving,  817. 


608  INDEX. 

AGENT,  C'utinn^d. 

Notice  by,  696-701. 
has  the  same  force  as  when  given  by  principal,  696. 
of  dishonor  of  commercial  paper,  697. 
"when  resident  in  same  place  as  paity  notified,  913. 

See  Bills  ajsd  Notes. 
Notice  of  disJionor  of,  by  whom  given. 
to  quit,  698. 

written  or  verbal,  699. 
effect  of  subsequent  ratification,  700. 
valid  only  from  time  of,  701, 
of  stoppage  in  transitu,  480. 
service  of  original  process  on,  1302-1310. 
See  Service. 

AGREEMENT, 

to  mortgage  is  recordable,  111. 
what  implied  between  landlord  and  tenant,  587. 
ALIMONY, 

action  for,  lis  pendens,  352. 

divorce  and,  actions  for,  service  of  process  by  publication,  1083. 
will  not  authorize  personal  judgment,  1143. 
ALTERATION, 

of  notice,  after  service,  1252. 

of  signs,  amounts  to  notice  of  dissolution  of  partnership,  503. 
AMBIGUITIES, 

in  notice  of  dishonor  not  fatal,  840. 
AMENDMENT, 

of  pleading  not  allowed  after  publication  of  process,  1050. 
of  return,  when  allowed,  1381. 
AMERICAN, 

registry  acts,  objects  of,  96. 

rule  as  to  notice  limiting  carrier's  liability,  541,  552 
AMOUNT, 

of  guaranty  uncertain,  396,  400,  419. 

definiteness  of,  398. 
of  tax  due,  should  be  stated  in  advertisement,  1009. 
APPEAL, 

Notice  of  1208-1220. 
not  alwa}'s  required,  1208. 
written  and  served  upon  attorney,  1209 
in  criminal  cases,  1210. 
from  suits  before  j  ustices  of  the  peace,  1311, 
when  notice  serves  as  an  assignment  of  errors,  1312. 


INDEX.  609 

APPEAL,  Continued. 

grounds  of  appeal  to  be  stated  in,  1213. 

assent  to  judgment  required  in,  1214. 

served  on  same  day  as  filed — California,  1215. 

must  be  given  in  time,  1216. 

personal  service  of,  not  required,  1217. 

to  be  given  to  co-parties,  1218. 
does  not  depend  upon  conflict  of  interest,  1219. 

waived  by  appearance,  1220. 
motion  to  dismiss,  special  notice  of,  not  required,  1191. 
APPEARANCE, 

waives  original  process,  1161,  note  2,  1358. 

notice  to  take  depositions  when,  1253. 

notice  of  motion,  1203. 

notice  of  appeal,  1220. 
special  does  not  amount  to  waiver,  1358. 
ARRIVAL, 

of  goods,  and  demand  by  consignee,  ends  transit,  461. 
notice  of,  given  by  carriers,  562-577. 

will  terminate  liability  as  carriers,  563. 

reasonable  lime  for  removal  after,  564. 

classification  of  conflicting  authorities,  565. 

in  Massachusetts,  Illinois,  Iowa,  held  unnecessary,  566. 

modification  of  the  rule  in  Massachusetts,  567. 

New  Jersey,  and  Vermont,  reasonable  time  to  remove,  568. 

additional  authorities,  to  same  point,  569. 

New  York,  Michigan,  Texas,  and  New  Hampshire,  required,  570. 

required  of  carriers  by  water,  571. 

comparison  of  conflicting  views,  573. 

rule  requiring  notice,  573. 

difference  in  local  customs,  574. 

rule  affected  by  custom,  575. 

waiver  and  excuse  of,  576. 

what  is  reasonable  time  for  removal,  577. 
ASSENT, 

to  judgment  required  in  notice  of  appeal,  1214. 

to  be  binding,  must  be  voluntary,  and  with  notice  of  rule  limiting 

liability  of  carriers,  555-557, 
ASSESSMENT, 

special,  advertisement  of  notice  of  sale  for,  1124. 
of  damages  to  property,  requires  notice  to  owner,  1139. 
ASSIGNEE, 

of  mortgage  regarded  as  purchaser,  262. 

in  bankruptcy,  notice  to,  of  dishonor  of  bill  or  note,  769-770. 

notice  of  dishonor  by,  725. 

39 


610  INDEX. 

ASSIGNEE,  Contimied. 

of  chose  in  action  takes,  subject  to  equities,  431. 
ASSIGNMENT, 

deed  of,  when  recordable,  115. 

of  lease,  116. 

of  mortgage,  117. 

for  benefit  of  creditors,  not  recordable,  120. 

of  choses  in  action,  no'ice  of,  428-450. 

definition  of  choses  in  action,  428. 

not  assignable  at  comiuou  law,  439. 

a.ssignnient  transfers  claim,  430. 

assignee  takes,  subject  to  equities,  431. 

effect  of,  to  debtor,  433. 

assignment  incomplete  without,  483. 

held  necessary  as  against  creditors,  484. 

objects  of,  435. 

assignee  has  no  greater  right  than  his  assignor  had,  436. 

by  whom  given,  437. 

presumed  from  circumstances,  438. 

after  notice  of  fraudulent  issue  to  assignor  will  not  affect  rights  of 
parties,  439. 

double  purpose  of,  440. 
of  over-due  negotiable  bills  and  notes,  requires  notice,  441. 

negotiable  paper,  unindorsed  require,  443. 

balance  due  on  account,  443. 

policies  of  insurance,  414. 
notice  to  insurer,  445. 
conditions  of  policy,  446. 
of  subject  of  insurance,  447. 

by  retiring  partners,  448. 

notice  of,  may  be  implied,  449. 

after  loss,  450. 
for  benefit  of  creditors,  of  maker  of  note,  will  not  excuse  notice  of  dis- 
honor, 949. 
of  errors,  notice  of  appeal  serves  as,  1313. 
ASSUMPSIT, 

when  in  action  of,  notice  to  produce  books  and  papers  unnecessary, 

1264. 
ATTACHMENT, 

grounds  of,  stated  in  affidavit  for  order  of  publication,  1336-1337. 

See  Process,  Original, 
of  funds  in  hands  of  drawee,  no  excuse  for  failure  of  notice  of  dis- 
honor, 1037. 
ATTORNEY, 

service  of  notice  of,  trial  on,  1173. 


INDEX.  611 

ATTORNEY,  Continued. 

retura  of  service  upon,  what  sufficient,  1248. 
service  of  notice  on  in  matters  of  practice,  1321-1333. 
in  suits  before  justice  of  tlie  peace,  1332. 
should  not  be  where  his  connection  with  case  has  ceased,  1333. 
AUCTIONEER, 

acceptance  of  proposal  by,  notice  of,  381. 
AVERMENTS, 

in  pleading,  necessary  to  obtain  order  of  publication,  1019-1050,  1057. 
of  notice  in  pleading,  when,  and  when  not,  necessary,  1386-1406. 
See  Pleading. 
AVOIDANCE, 

of  knowledge,  notice  may  be  inferred  from,  89. 
BAILEES, 

notice  to,  of  delivery  of  thing  bailed,  452-456. 

See  Carriers  and  other  Bailees. 
of  vendor's  right  of  stoppage  in  transitu,  457-480. 
See  Stoppage  in  Transitu. 
BAILIFF, 

or  servant  of  landlord,  not  entitled  to  notice  to  quit,  595. 
BANKING  CORPORATION, 

notified  through  it^  executive  officer,  675. 
notice  to  directors  of,  will  bind  when,  G82-683. 
BANKRUPTCY, 

of  holder,  by  whom  notice  of  dishonor  may  be  given, 
of  drawer  or  indorsei*,  to  whom  notice  may  be  given, 
of  acceptor,  no  excuse  for  failure  to  give  notice  of  dishonor, 
dissolution  of  partnership  by,  497. 
BILL  OF  LADING, 

effect  of  assignment  of,  upon  consignors'  rights,  472. 
when  notice  limiting  carriers'  liability  printed  on,  insufficient,  548. 
BILLS  AND  NOTES, 

negotiable,  purchasers  of,  how  affected  with  notice,  80-94. 

See  Purchasers. 
Notice  of  dishonor  of,  702-1 03S. 
By  whom  ra-iy  he  given,  702-728. 
generally  by  holder,  702. 
by  any  party  to  the  instrument,  703. 
criticism  of  authorities  by  Judge  Story,  704. 
party  discharged  becomes  stranger  to  bill,  705. 
party  not  notified,  not  immediately  discharged,  706. 

time  must  have  elapsed  within  which  should  have  been  noti 
fied,  706. 


612  INDEX. 

BILLS  AND  NOTES,  Continued. 

by  any  party,  entitled  to  re-imbnrsement  on  paying,  707, 709. 

given  by  party  before  received,  708. 

cannot  be  waived  by  party  once  discharged,  so  as  to  render  his 

notice  valid,  708. 
by  acceptor,  710. 
by  acceptor,  supra,  protest,  711. 
by  drawee  of  bill,  712. 
by  maker  of  note,  713. 
by  an  agent,  714. 
for  collection,  or  by  notary,  715. 
when  by  holder,  need  not  be  owner,  716. 
by  successive  agents  to  each  other,  717. 
will  not  be  atfected  by  signing  wrong  name,  718. 
must  have  authority  from  party  whose  name  is  used,  719. 
authority  implied,  720. 
by  one  holding  as  security,  721. 
ratification  by  holder  of  act  of  stranger,  723. 
by  one  without  knowledge  when  given,  723. 
by  executor  or  administrator,  724. 
by  assignee  in  bankruptcy,  725. 
when  by  bankrupt,  726. 
by  guardian  or  ward,  727. 
by  married  woman,  728. 
To  whom  given,  729-775. 

to  drawers  and  indorsers — reason  for  rule,  729. 
drawer  of  bill,  730. 
should  not  be  waived  by  agent,  731. 
when  not  entitled  to  notice,  732. 

drawn  upon  partnership  by  member  of  firm,  733. 
to  indorser,  734. 

need  not  be  indorser  for  value,  735. 
to  any  antecedent  party,  736. 

may  be  of  partial  dishonor,  737. 
to  indorsers  of  over-due  paper,  738. 
the  same  reasons  apply  as  in  case  of  dishonor  of  paper  indorsed 
before  maturity,  739. 
indorser  who  re-issues  dishonored  paper  not  entitled  to,  740. 
purchase  at  indorser's  request,  notice  unnecessary,  741. 
transferer  by  delivery  not  entitled  to,  742. 
to  agent,  743. 
authority  of,  to  receive,  what  sufficient,  744. 
may  be  implied,  745. 
question  of  fact,  746. 
when  inferred  from  nature  of  general  authority,  747. 


INDEX.  613 

BILLS  AND  NOTES,  Continued. 

appointed  prior  to  war,  may  be  notified  after  hostilities  com, 

menced,  748. 
autliority  to  receive,  wliat  held  insufficient,  749. 

not  implied  from  authority  to  indorse,  750. 
to  partners,  751. 

indorsement  during  partnership,  753. 

after  dissolrtion,  753. 

to  agent  of  one  of  the  partners,  754.     (See) 

to  surviving  partner,  755. 

exception  to  the  rule  of,  binding  both  by  serving  one,  756. 
to  joint  indorsers,  not  partners,  not  by  service  on  one,  757. 

agency  not  implied  from  joint  indorsement,  758. 

consequences  of  failure  to  notify  both,  159. 

assumption  of  authority  by  one,  binds  himself,  760, 

admission  of  proper  notice  by  one  of  two,  761. 
joint  administrators  cannot  tie  their  hands,  763. 
to  personal  representatives,  763. 

how  addressed  to  and  served,  764-768. 
in  case  of  bankruptcy,  party  liable,  769, 

before  selection  of  assignee,  770. 

no  excuse  for  failure  of  notice,  771. 

after  assignment,  might  be  to  bankrupt,  773. 
to  infant  party,  773. 
to  married  woman,  774. 
to  insane  drawer  or  indorser,  775. 
time  of  giving,  776-827. 
importance  of  question  of,  776. 
rules  of,  settled  by  repeated  decisions,  777. 
division  of  subject,  778. 
must  be  subsequent  to  dishonor,  779. 
effect  of  payment  on  day  of  dishonor,  780. 
may  be  on  last  day  of  grace,  781. 
note  dishonored  on  last  day  of  grace  when  payment  refused,  782, 

'by  failure  to  pay  on  presentment,  783. 

by  failure  and  qualilied  refii'^al,  784. 
to  resident  of  same  place  as  holder,  785. 
time  of  delivery  and  not  of  sending,  786. 
at  place  of  business  or  residence,  787. 
hours  at  place  of  business,  788. 
hours  at  place  of  residence,  789. 

nine  o'clock,  v.  m.,  790. 

when  left  on  day  of  dishonor,  791. 
to  parties  resident  in  different  place  from  holder,  793. 
by  mail,  time  of  depositing  letter,  793. 
general  construction  of  "reasonable  time,"  794. 


614  INDEX. 

BILLS  AND  NOTES,  Continued. 

each  party  has  his  "day,"  795. 
not  required  to  nesrlect  other  business  to  give,  796. 
the  "day"  of  one  party  not  for  the  benefit  of  another,  797. 
consequence  of  numerous  parties  talking  one  day,  798. 
time  not  always  measured  by  number  of  indorsers,  799. 
diiBculties  in  applying  the  rule,  800. 
Chitty's  doctrine  as  to  "next  day,"  by  first  mail,  801. 
twent3^-four-hour  rule  of  Judge  iStory,  803. 
impracticability  of  Chitty's  rule,  803. 
inconvenience  of  twenty-four-hour  rule,  804. 
judicial  interpretation  of  "next  day,"  805. 

what  is  unreasonably  early  hour,  depends  upon  local  cus- 
toms, 806. 

the  hour  of  closing^the  mail,  807. 
five  o'clock,  held  too  early,  808. 
seven  o'clock,  held  too  early,  809. 
six  o'clock,  the  hour  of  closing,  810. 
ten  minutes  past  nine  o'clock,  811. 
might  be  earlier  than  liiue,  813. 
half-past  nine  held  loo  early,  813. 
construction  of  rule  by  Chief  Justice  Marshall,  814. 
not  necessarily  by  first  mail  of  next  day,  815. 
where  no  mail  on  next  day,  deposited  in  time  for  next  mail, 

816. 
agents  or  attornej-s  have  their  day,  817. 
must  be  secular  day,  818. 
Jewish  festival,  819. 
Sunday,  830. 
time  referred  to  hour  of  mailing,  831. 

governed  by  law,  of  place  of  contract.  833. 
consequences  of  adopting  unusual  modes,  833. 
general  rule  one  of  enlargement,  rather  than  of  restriction,  834. 
waiver  and  excuse,  885. 
deductions  from  authorities  cited,  83G. 

no  exceptions  to  rule  requiring  notice  in  reasonable  time,  837. 
Manner  and  mode  of  giving,  838-939. 
division  of  subject,  838. 
where  and  how  sufficiently  served,  if  duly  received,  839. 

by  post  to  residents  of  same  place,  830. 
whether  written  or  oral.  831. 
verbal  notice  delivered  to  wife,  832. 
should  be  written  to  distant  parties,  833. 
form  and  contents,  834. 
no  form  prescribed,  835. 
immaterial  omissions,  8J6 


INDEX.  615 

BILLS  AND  NOTES,  Continued. 
date  of  maturity,  837. 
name  of  payee,  838. 
clerical  errors,  839. 
mere  ambiguities,  840. 
must  sliow  presentment  on  business  day,  841. 
signed  by  one  having  authority,  843. 
where,  and  bow  served,  848. 

parties  residing  iu  same  place,  844. 
indorser  temporarily  absent  from  home,  845. 
what  constitutes  a  place  of  business,  846. 
personally  upon  resident  of  some  place,  when  place  of  resi- 
dence known,  847. 
by  post  on  resident  of  same  place,  delivery  must  be  proved,  848. 
different  meanings  of  the  word  "town,"  849. 
by  post,  between  residents  of  different  villages  m  same  town, 

850. 
leaving  at  residence  or  place  of  business,  851. 
residence  in  one  place,  business  in  another,  853. 

"  place  of  business  "  and  "  residence,"  and  what  amounts  to 

leaving  at  either,  853. 
residence,  854. 
need  not  be  domicile,  855. 
leaving  notice  at,  b56. 
boarding  house,  857. 
at  counting  house,  with  pretended  agent,  858. 
will  not  suffice  to  leave  near  the  place,  859-800. 
corresponding  numbers  not  sufficient  to  identify  place,  8G1. 
several  places  of  business,  either  will  suffice,  863. 
holder  may  elect  between  place  of  business  and  residence,  863. 
may  be  left,  when  no  one  there  to  receive  it,  864. 
must  be  the  proprietor  of  place  of  business,  865. 
office  of  directors  of  corporation,  866-867. 
difference  in  time,  at  residence  or  place  of  business,  868. 
by  mail  between  residents  of  the  same  place,  869. 
letter  carriers,  870. 

drop  letters  required  to  be  stamped,  871. 
penny  post,  873. 

in  Baltimore,  and  other  large  cities,  873. 
established  custom  of  bank,  874. 
when  authorized  by  indorser,  875. 
by  mail  to  parties  residing  near  place  of  dishonor,  876-877. 
partners — one  residing  in,  and  one  near  place  of  dishonor,  878. 
cases  requiring  personal  notice  to  indorser  residing  in  neighbor- 
hood, 879. 
residing  three  miles  distant,  880. 


616  INDEX. 

BILLS  AND  NOTES,  Continued. 

personal,  where  party  resides  at  great  distance  from  any  post 

office,  881. 
parties  residing  near  different  post  towns,  883, 
office  to  which  indorser  usually  resorts,  883. 
general  adoption  of  sendee  by  mail,  884. 
exceptional  case,  885. 
necessity  of  a  rule,  88G. 
by  mail  to  different  places  in  same  town,  887. 
general  direction  to  town  postoffice,  prima  facie  sufficient,  888. 
private  messenger,  8S9. 

addressed  to  residence  or  place  of  business  when  known,  890. 
must  be  addressed  to  place  of  residence,  891. 
may  be  notified  at  pretended  place  of  residence,  893. 
exception  to  cases  where  mail  most  convenient  mode,  893. 
when  holder  may  choose  between  places,  894-896. 
cases  governed  by  question  of  distance,  897. 
criticism  of,  and  true  rule  laid  down,  898. 
by  mail.  899-929. 

to  principal  office  of  parish,  891. 

to  county  seat,  900. 

to  principal  office  of  town,  901. 

inquiry  should  be  made  for  residence,  903-903. 

sufficiency  of,  question  for  jury,  904. 

to  transient  indorser,  may  be  at  temporary  residence,  905. 

but  not  when  he  has  a  permanent  place  of  abode,  906. 

member  of  congress,  when,  and  how  should  be  served,  907. 

when  suthcient,  if  sent  to  last  known  residence,  908. 

diligent  inquiry  for  unknown  residence,  909. 

inclosing  notices  to  all,  in  letter  to  last  indorser,  910. 

transitory  place  of  business,  911. 

through    non-resident    agent,  between  residents  of  same  place 

913. 
from  resident  agent,  of  non-resident  holder,  913. 
through  successive  indorsers  between  parties  residing  in  same 

place,  914. 
sending,  without  inquiry,  to  place  of  payment  insufficient,  915. 
information  sufficient  to  put  upon  inquiry,  916. 
inquiry,  sufficient  and  insufficient,  917-921. 
to  certain  place  on  the  strength  of  previously  acquired  knowl- 
edge, 922  923. 
addressed  by  surname  aloue,  insufficient,  924. 
delay  chargeable  to  indorser,  925. 
holder  misled  by  place  of  date,  926. 
address  should  include  name  of  state,  927. 
to  place  designated  by  indorser,  928. 


INDEX.  617 

BILLS  AND  NOTES,  Continued. 

delay  from  sending  by  unusual  route,  929. 
Waiver  and  excuse  of,  930-1028. 
general  character  of  waiver,  930. 
division  of  subject,  931. 

waiver  may  be  antecedent  or  subsequent.,  932. 
antecedent  waiver  in  writing,  933. 
efiect  of  "protest  waived,"  934. 
"I  waive  demand  of  protest,"  935. 
may  be  imbodied  in  the  instrument— will  not  excuse  presenl> 

ment,  936. 
no  special  form  required,  937. 
by  letter,  938. 
may  be  verbal,  939. 
established  by  circumstances,  940. 
by  promise  to  the  maker  to  paj',  941. 
when  promise  supported  by  consideration,  942. 
indemnity  taken,  does  not  always  waive,  943. 
reservation  of  title  to  real  estate,  for  which  note  given,  944. 
when  depends  upon  suflScieucy  of  indemnity,  945. 
indemnity  taken  by  indorser,  is  for  his  own  security,  946-947. 
indorser  with  funds  of  maker  does  not  become  principal,  948. 
assignment  to  trustee  will  not  excuse,  949. 
taking  mortgage  of  all  makers'  property  held  no  waiver,  950. 
indemnity  taken,  furnishes  stronger  reason  for  notice,  951-953. 
indorsement  of  renewal  note,  not  accejited,  no  waiver,  953. 
request,  no  waiver  when  not  acceeded  to,  954. 
by  first  indorser  does  not  bind  subsequent,  955. 
subsequent  promise,  efiect  of,  conflicting  views  as  to,  956. 
conditions  of,  957. 

when  made  without  knowledge,  no  waiver,  958. 
express  and  implied,  959. 
implied,  960. 

promise  to  see  it  paid,  held  sufficient,  961. 
recitals  in  contract  of  parly  acknowledging  bill,  963. 
must  be  unequivocal,  963. 
admissions  to  strangers  do  not  amount  to,  964. 
anxiety  to  have  bill  paid,  no  waiver,  965. 
held  evidence  of  prior  notice,  966. 
held  no  evidence  of  notice,  but  might  waive,  967. 
even  written  admission  not  conclusive,  968. 
either  waiver  or  admission,  969. 
onus  probiindi,  970,  973. 
priimfdcie  evidence  of  diligence,  971. 
of  knowledge  of  laches,  972. 
principles  governing  the  question,  974. 


618  INDEX. 

BILLS  AND  NOTES,  Continued. 

knowledge  of  facts,  and  not  tlieir  legal  effect,  necessary  to 
bind  subsequent  promisor,  975. 
excuses  of  a  general  nature  enumerated,  976. 
inevitable  accident,  978. 
prevalence  of  malignant  fever,  979. 
exi.stence  of  war,  980. 
interdiction  of  commerce,  981. 
actual  hostilities,  983. 
late  war,  983. 
interruption  of  postal  communication,  984. 

existence  of  war,  where  note  payable,  985. 
if  intercourse  legal,  no  excuse,  986. 
loss  of  note  by,  no  excuse,  987. 

when  obstruction  removed,  party  entitled  to,  988,  992. 
party  not  required  to  violate  law  of  his  domicile,  989. 
failure  to  find  after  diligent  inquiry,  990. 

facts  excusing  presentment  will  not  always  excuse  failure  of  no- 
tice, 991. 
death  of  holder,  993. 

sudden  sickncsss,  and  death  of  agent,  994-995. 
excuses  of  a  special  character,  enumerated,  977. 
special  excuses — treated  as  waiver,  996. 
bill  drawn  for  benefit  of  drawer,  997. 
accommodation  note  or  bill,  998-999. 
mere  understanding  between  drawer  and  drawee,  that  former  shall 

pay  will  not  excuse,  1000. 
no  funds  in  hands  of  drawee,  when  will  excuse,  1001-1009. 
application  of  the  rule  confined,  1002. 
drawer  has  no  right  to  anticipate  payment,  1004. 
bill  drawn  against  goods  in  transit,  1005. 
amount  in  hands  of  drawee  grossly  inadequate,  1006. 
where  drawer  had  been  informed  that  draft  would  not  be  paid, 

1007. 
w^here  drawer  indebted,  but  amount  not  yet  due,  1008. 
expectation  of  payment  must  continue  to  maturity,  1009. 
payment  need  not  be  anticipated  from  drawee,  1010, 
may  be  anticipated  from  drawee's  promise,  1011. 

when  drawee  has  already  honored  drafts,  1012, 

running  account  between  parties,  1013. 
suspecting  absence  of  funds,  no  excuse,  1014. 
drawer  being  in  debt  to  drawee  no  excuse,  1015. 
no  expectation  of  funds  at  the  place,  no  excuse,  1016. 
wantof  funds  will  not  excuse  failure  to  notify  indorser,  1017. 

tliough  he  be  accommo(hUion  indorser,  1018. 

otiierwise  where  indorsement  is  made  witii    notice   of  facts 
sufficient  to  excuse,  1019. 


INDEX.  619 

BILLS  AND  NOTES,  Covtivned. 

former  partnership  between  drawer  and  drawee,  no  excuse,  1020. 

partner  drawing  upon  hislirm  not  entitled  to  notice,  1021. 

that  goods  purchased  ire  for  use  of  tirm,  will  not  excuse  notice 
of  dishonor  of  note,  given  for,  1022. 

fraud  practiced  by  indor.  er,  will  excuse  failure  of  notice,  1023. 

motives  for  indorsement  immaterial,  1024. 

adding  the  word  "sui-ety,"  will  not  excuse,  1025. 

presence  of  iudorser  at  refusal,  will  not  excuse,  1026. 

attachment  of  funds  in  hand  of  drawee  no  excuse,  1027. 

notice  not  required  of  dishonor,  of  void  note,  1028. 
BOARDING  HOUSE, 

when  place  of  residence  of  party  to  bill,  notice  may  be  left  at,  857. 

BONDS, 

negotiable,  notice  of  defenses  to,  through  trustees,  676,  note  3. 
notice  to  produce,  in  actions  on,  unnecessary,  1205. 
motion  for  judgment  on,  notice  of,  1197. 
BOOKS, 

and  records  constituting  link  in  chain  of  title,  notice  from,  326. 
BOOKS  AND  PAPERS, 

notice  to  produce,  to  be  offered  in  evidence,  1257-1292. 
general  remarks,  1257. 

necessary  to  the  admission  of  secondary  evidence,  1258. 
demand  before  suit  brought,  not  sufficient,  1359. 
necessary  when  papers  recorded,  1260. 
rule  same  in  criminal  prosecution,  1261. 
exceptions,  12G2. 
in  action  of  trover,  unnecessary,  1263. 
in  assumpsit,  unnecessary,  1264. 
debt  on  bond,  unnecessary,  1265 
action  of  covenant,  unnecessary,  1266. 
against  constable  for  making  return,  unnecessary,  1367. 
papers  filed  or  mentioned  iu  pleadings,  1268. 
papers  in  court,  1269, 
paper  must  be  traced  to  oppnsite  party,  1270. 
proof  of  possession  from  (;ircumstances,  1271. 
papers  under  control  of  adveisary,  1272. 
privity  of  party  notilied,  witli   party   in  possession   must  be 

proven,  1273. 
property  passed  out  of  party's  possession.  1374. 
party  failing  to  produce  may  impeach  copy,  1275. 

not  by  introduction  of  original,  1276. 
secondary  evidence,  where  possession  of  paper  disclaimed,  1277. 
production  is  not  an  admission  of  genuinness  of  signature,  1278. 
original  need  not  beoflered  after  production,  1279. 


620  INDEX. 

BOOKS  AND  PAPERS,  Continued. 

inference  drawn  from  failure  to  produce,  1280. 
notice  to  produce  notice,  unnecessary,  1281. 
contents  of  notice,  1283. 
should  not  be  too  general,  1283. 
general,  required  to  be  in  writing,  1284. 
renewal  unnecessary  in  case  of  continuance,  1285. 
time  of  notice  to  produce,  1286. 
served  at  trial — too  late,  1287. 
part}'  notified  not  required  to  incur  expense,  1287. 
original  not  in  existence,  time  of  service  immaterial,  1289. 
may  be  served  upon  opposite  attorney,  when,  1290. 
may  be  served  upon  either  of  several  joint  parties,  1291. 
personal  service  not  indispensable,  1292. 
BUSINESS, 

place  of  leaving  notice  of  dishonor. 

See  Bills  asj)  Notes. 

CARRIERS, 

Notice  by,  limiting  their  liability,  531-577. 
division  of  subject.    1.  Restricting  their  liability  as  insurers.    2. 

Terminating  their  liability  as  carriers,  531. 
■when  their  liability  to  consignor  has  its  inception,  532. 
upon  delivery  of  goods  for  transportation — rule  not  affected  by 
public  notice,  533. 
nature  of  common  law  liablility,  534. 
different  methods  of  giving,  535. 
state  of  the  law  in  England,  536. 
where  notice  held  sufficient,  must  be  brought  home  to  con- 
signor, 537. 
posting  insufficient,  unless  notice  read,  538-540. 
American  rule — must  be  clear  and  explicit,  .541. 
value  required  to  be  stated,  to  fix  cost  of  carriage,  543. 
printed  on  railroad  ticket,  543. 
must  be  seen  and  understood,  544-546,  548. 
to  whom  given — agent  or  servant,  547. 

must  be  seen  and  assented  to  wlien  printed  on  bill  of  lading,  548. 
when  several  conflicting,  bound  by  least  fa%'orable  to  one  giving, 

549-550. 
to  owner,  will  affect  transactions  by  agent  to  whom  not  communi- 
cated, 551. 
general  doctrine  in  America,  cannot  be  limited  by,  552. 
may  be  by  contract,  553. 
notice  and  assent  amounts  to,  554. 
assent  must  be  voluntarj-,  555-557. 
will  not  exempt  from  liability  for  negligence,  558-561. 


INDEX.  621 

CARRIERS,  Continued. 

even  where  assent  raises  a  contract,  559. 
notice  of  arrival,  562-577. 

See  Arkival. 
of  letters,  when  notice  of  dishonor  delivered  by,  870. 
CARRIERS  AND  OTHER  BAILEES, 
Ifotice  to,  451-480. 
division  of  subject,  451. 
of  delivery  of  goods  for  carriage,  452. 
in  what  cases  required  when  goods  deposited  at  public  ■wharf, 

453. 
will  only  bind  carrier  when  he  consents  to  receive  them,  454, 
when  so  delivered  pursuant  to  previous  understanding,  455, 
not  necessary  when  delivered  on  carrier's  private  wharf,  456. 
stoppage  in  transitu,  457-480, 

See  Stoppage  in  Transitu. 
CERTAINTY, 

as  to  facts  communicated,  sufficient  if  may  be  rendered  certain  by 

inquiry,  30. 
of  description  in  mortgage,  what  sufficient,  180-185. 
in  recitals  of  title  papers,  reasonable  degree  of,  required  to  affect  pur- 
chasers, 316-321. 
CERTIFICATE, 

of  emancipation  not  recordable,  121. 

of  official  character  of  officer  taking  acknowledgment,  required,  126, 
CHAIN  OF  TITLE, 

instrument  must  be  in  some,  for  record  to  operate  as  notice,  205-206. 
effect  of  missing  link,  207. 

record  imparts  no  notice  of  relations  between  parties,  208. 
example  of  broken,  210-212. 

sherifl"'s  deed  of  interest  of  apparent  stranger,  is  not  notice,  213, 
record  of  conveyance,  anterior  to  grantor's  acquisition  of  title,  214- 
216. 
CHANCERY  PROCEEDINGS, 

in  United  States  courts,  how  notice  of,  served,  1356. 
when  of  summary  nature,  party  entitled  to  notice  of,  1140. 
CHATTEL  MORTGAGE, 

notice  of,  by  registration,  and  of  unregistered,  77. 
deposit  of,  in  wrong  town,  will  not  affect  purcha'^ers  with  notice,  194, 
effect  of  registry,  as  notice,  follows  property  to  another  state,  244, 
unrecorded,  hold  good  against  attaching  creditors  with  notice,  271, 
CHATTELS, 

purchasers  of.  with  and  without  notice  of  title  adverse  to  grantor,  C7. 
innocent  pledgee,  68. 


622  INDEX. 

CHATTELS,  Continued. 

mere  possession  not  conclusive  evidence  of  title,  69. 

innocent  purchaser  from  broker  unaffected  by  secret  instructions 

from  principal,  70. 
secret  lien  for  purchase  money  ineffectual,  71. 
conditional  sales,  72-76. 

See  Conditional  Sales. 
not  affected  by,  including  in  recorded  deed  to  real  estate,  336 
possession  of,  notice  to  purchasers  of  rights  of  possessor,  78,  306. 
CHOSES  IN  ACTION, 

purchaser  charged  with  notice  of  equities  against,  79. 
notice  of  assignment  of,  428-450. 

See  Assignment. 
CLERICAL  ERRORS, 

will  not  always  vitiate  notice  of  dishonor  of  commercial  paper,  839. 
when  not  misleading,  will  not  vitiate  notice  of  taking  depositions, 
1225. 
CLERK, 

of  municipality,  service  on,  insufficient,  1318. 

COMMERCE, 

interdiction  of,  excuses  notice  of  dishonor  of  nogotiable  instrumeatSi 
981. 
COMMERCIAL  PAPER, 

notice  of  dishonor  of. 

See  Bills  and  Notes. 
COMMON  CARRIERS, 

See  Cakriers. 
COMPUTATION  OF  TIME, 

of  publication  of  notice,  1070. 

of  notice  to  take  depositions,  1235. 

of  service,  1330-1331. 
CONCEALMENT, 

of  agency  will  not  exonorate  principal,  671. 
CONDITIONAL  SALES, 

purchasers  from  conditional  vendee  charged  with  notice,  73, 

property  held  in  pledge,  subject  to  rights  of  pledgor,  73. 

condition  binding  when  by  parol,  74. 

property  may  be  unclaimed  in  an  altered  state,  75. 

caveat  emptor,  76. 
CONDITIONS, 

of  a  mortgage  insufficiently  expressed,  registry  void,  179. 

of  waiver  of  notice  of  dishonor  of  commercial  paper,  957. 

of  insurance  policy,  assigned  subject  to,  446. 


INDEX.  623 

CONSENT, 

to  postponement  of  taking  depositions,  1230. 

to  shortening  the  time  of  taking  depositions,  1251. 
CONGRESS, 

notice  of  dishonor  of  bills,  how  served  on  member  of,  907. 
CONSIDERATION, 

payment  of,  necessary  to  protection  of  purchaser  of  negotiable  instru- 
ment before  maturity,  93. 

want  of  does  not  effect  registration  of  deed,  122-123. 

payment  of,  no  protection  to  \mrclrdser  pendente  lite,  847. 

necessary  to  support  assignment  of  bill  of  lading  as  against  cred- 
itors, 473. 
CONSIGNEE, 

notice  of  rights  of,  adverse  to  consignors,  458-480. 
See  Stoppage  in  Transitu. 

possession  by,  ends  transit,  466. 
CONSTRUCTIVE  NOTICE, 

definitions  of,  37-89. 

held  same  as  implied  notice,  88. 

when  prescribed  by  statute,  39. 

distinctions  between,  and  actual,  express  or  implied,  40. 

different  kinds  of,  41 . 

is  an  inference  of  law,  42. 

of  contents  of  writing,  to.  person  executing,  43. 

possession  held  as,  44. 

to  purchasers  pendente  lite,  45,  339. 

See  Lis  Pendens. 

of  recitals  in  title  papers,  46,  309. 

from  possesnon  of  deeds,  47. 
CONTINUANCE, 

of  case  does  not  require  nenewal  of  notice  to  produce,  1285. 
CONTRACT, 

to  convey,  prior  and  subsequent,  effect  of  notice,  55. 

executory  when  not  entitled  to  registration,  122-123. 
notice  of,  by  recital  in  title  papers,  329. 

completed  liy  notice  of  acceptance  of  proposal,  M78. 

carriers  may  limit  their  common  law  liabilities  by,  353-357. 
See  Cahhiers. 

in  agent's  name  may  l)ind  principal,  670. 

acknowledging  bill  of  exchange  held  waiver  of  notice,  953. 

for  public  improvements,  notice  by  publication,  1123. 
CONVEYANCES, 

unregistered,  purchasers  with  notice  of,  04. 


624  IKDEX. 

CONVEYANCES,  Continued. 

See  Unregistered  Instruments. 
between  stranger^  to  title,  registry  does  not  affect  purchasers,  283. 
by  statute — execution  sale,  327. 
registration  of,  95-272. 

See  Registration  of  Instruments. 
CONVICTS, 

service  of  notice  upon,  1317. 
CORPORATIONS, 

formed  by  partners,  members  individually  liable,  488. 

notice  iy,  to  quit,  622. 

notice  to,  to  quit,  628. 

not  affected  with  notice  of  every  fact  known  to  directors,  683. 

office  of,  the  place  of  business  of  directors,  866-867. 

foreign,  how  served  with  process,  1308-1308. 

domestic,  how  served  with  process,  1309-1311. 
See  Jurisdiction. 

municipal  service  of  notice  on,  1312-1313. 
COURT, 

when  sufficiently  designated  in  notice,  1210. 
COVENANT, 

action  of,  when  notice  to  produce  books  and  papers  unnecessary,  1266. 
CREDITOR, 

purchasing  at  execution  sale,  charged  with  notice  by  prior  registry, 
228-235. 

charged  with  notice  of  unregistered  deed  by  prior  information,  264. 

affected  with  notice  of  unregistered  chattel  mortgage,  271. 

affected  with  notice  by  possession,  305. 
CREDITORS'  BILL, 

to  operate  as  lis  pendens  must  be  definite  in  description,  803. 

DAY, 

party  entitled  to  one,  for  giving  notice  of  dishonor  of  bills  and  notes, 
794-805. 

general  construction  of  "  reasonable  time,"  794. 
each  party  has  his  day,  795. 

statement  of  rule  by  Ellenborough,  796. 
the  "  day  "  of  one  party  not  for  the  benefit  of  another,  797. 
consequences  of  numerous  parties  taking  one  day,  798. 
time  not  always  measured  by  number  of  parties,  799. 
difficulties  in  applying  the  rule  of  one  day  to  give  notice,  800. 
Chitty's  doctrine  as  to  "next  day,"  801. 
criticism  of  Chitty,  by  Story — twenty-four  hours,  802. 
impracticability  of  Chitty's  rule,  803. 


INDEX.  625 

DAY,  Continued. 

inconvenience  of  twenty-four  hour  rule,  804. 
judicial  construction  of  "  next  day,"  805. 
agents  or  attorneys  have  one,  for  giving  notice  of  dishonor,  817. 
muat  be  secular  day,  818. 
Jew^ish  festival,  819. 
Sunday,  820. 
DEATH, 

of  partner,  dissolves  partnership,  notice  unnecessary,  496. 
DEBT, 

action  of, — when   notice  to  produce  books  and  papers  unnecessary, 
1260. 
DECEEE  IN  CHANCERY, 

summary  proceedings  to  obtain,   require  notice,  1140. 
DEED, 

possession  of,  as  notice  of  rights  of  possessor,  46,  56. 
registry  of,  as  notice  to  purchasers. 

See  RBfiisTRATiON  OP  Instruments. 
of  assignment,  should  be  recorded,  115. 

with  defeasance,  is  mortgage  and  should  be  so  recorded,  187-189. 
sheriff's,  recorded  as  mortgage,  will  not  operate  as  notice,  190. 
unregistered  notice  of. 

See  Unrkoistered  Instruments. 
notice  from  recitals  in. 

See  TiTT.E  Papers. 
DEFEASANCE, 

deed  with,  should  be  recorded  as  mortgage,  to  operate  as  notice  to 

purchasers,  187-189. 
by  parol,  deed  recordc^l  as  mortgage,  189. 
DEFENDANT, 

should  be  named  in  original  process,  1152. 
when  omission  of  name  held  immaterial,  1153. 
when  infant — how  served  with  process,  1158. 
DEFINITION, 

of  actual  notice,  3. 
of  constructive  notice,  37. 
DELIVERY, 

of  instrument  necessary  to  give  ellect  to  registry  as  notice,  141-143. 
after  recording,  142. 
effect  of,  143. 
of  goods  for  transportation,  notice  to  carriers  of,  452-456. 

Sec  Cauhikhs. 
whennegotiabh'  jjapcr  jJiisses  by,  transferrers  not  entitled  to  notice,  742. 
40 


626  INDEX. 

DELAY, 

in  sending  notice  of  dishonor  by  unusual  route,  939. 
DEMAND, 

on  principal,  and  notice,  to  bind  guarantor. 

See  Guaranty. 
for  indemnity,  after  loss  of  insured  property,  notice   of  assignment 

of,  450. 
by  consignee,  ends  transit  of  goods,  462. 

See  Stoppage  in  Transitu. 
for  books  and  papers  to  be  used  in  evidence,  will  uol  dispense  with 
notice  to  produce,  1259. 
DEPOSITIONS, 

Notice  of  taking.  1221—1256. 
when  required.  1221. 
generally  iu  writing,  1233. 
whal  to  contain.  122^i. 
deemed  sufficient,  1224. 
clerical  errors  in,  1225. 
name  of  officer,  1226. 
witnesses  need  not  all  be  named,  1327. 
conditional — insufficient,  1228. 
must  be  signed,  1229. 
time  of  taking,  1230. 

mistake  in  date  of  taking,  1231. 
general  requisites,  1232. 
time  of  service,  1233. 

decided  by  the  court,  1234. 
computation  of  time  and  distance,  1235. 
absence  of  statute  or  rule,  1236. 
not  always  governed  by  distance,  1237. 
not  fixed  by  special  circumstances,  1238. 

except  when  unusuallj'  short,  1239. 
fixed  by  statute  may  be  shortened  by  the  court,  1240. 
objections  on  account  of  shortness  of,  when  made,  1341. 
party  objecting  must  show  himself  entitled  to  time,  1343. 
service  of,  1213,  13(>l)-1301. 
insufficient,  1244. 
upon  several  co-parties,  1245. 
strict  personal  not  required,  1346. 
proof  of,  1247. 
upon  attorneys  in  partnership,  1248. 
wheo  deposition  to  be  used  in  two  cases,  1249. 
postponement  by  consent,  12-")0. 
effect  of  acknowlt'doinent  of  service,  1251. 


INDEX.  627 

DEPOSITIONS,  Continued. 
alteration  of,  1252. 
objections  waived,  1253. 
by  presence  at  talcing,  1254. 
party  may  be  present  without  waiver,  1255. 
effect  of  ailjournnient  without  consent,  1256. 

DESCRIPTION, 

in  title  papers,  sufficient  to  give  notice  to  purchasers,  318-320. 
of  property,  in  original  process  by  publication,,  1059. 

in  published  notice  of  judicial  sale,  1088. 
of  debt  in  mortgage,  whut  is  sufficient,  180-185. 
errors  in,  how  registry  of  instruments  affected  by, 
See  RKGrsTRATiON  of  Instkitments. 
DESTRUCTION, 

of  records  does  not  affect  notice  by  prior  registration,  157. 
DILIGENCE, 

purchaser  of  real  or  personal  property,  put  upon  inquiry,  bound  to 

exercise,  17. 
imputation  of  bad  faith  from  want  of,  11 
purchaser  of  negotiable  instruments  bound  to  exercise,  87. 
in  prosecution  of  suit,  nece.ssary  U^  notice  by  lis  pendens,  357-359. 
of  holder  of  bill  or  note  in  jiresenting  for  acceptance  or  payment, 
and  giving  notice,  990-991. 
DIRECTOR, 

of  bank,  notice  to,  i.tfects  corporation,  682. 

corporation  not  affected  with  knowledge  of  every  fact  known  to,  688. 
of  coi-|)oration.  place  of  business  of,  where  notice  may  be  served,  866. 
DISHONOR, 

Of  camiaercial  paper,  notice  of,  Ch.  VI,  §§  702-1038. 
by  lohom  given,  702-728. 
to  lolunii  yivcii,  729-775. 
tima  of  ginng.  776-827. 
mnTiwr  and  mode  of  giving.  82^3  929. 
waiver  and  excuse,  930- 1028. 

See  Bills  and  Notk.s. 
DISMISSAL, 

of  suit,  effect  of,  upon  notice  hy  lis  pendens,  358. 
DISSOLUTION  OF  PARTNERSHIP, 
Notice  of,  481-530. 

general  nature  of  jiartnership,  481. 
range  of  inquiry,  4S2. 
reason  for  requiring  notice,  483. 
personal  notice,  oral  (;r  written,  484. 
knowledge  derived  trom  ciicuuistauces,  485. 


628  INDEX. 

DISSOLUTION  OF  PARTNERSHIP,  Continued. 
use  of  name  after  retirement.  480. 
effect  of  legal  notice  of  dissolution,  487. 
corporation  using  partnership  name,  488. 
unnecessary  to  those  ignorant  of  the  partnership,  489-490. 

general  knowledge  of  partnership  sufficient,  491. 
dormant  partners,  492. 

dormant  with  respect  to  particular  transaction,  493 
must  be  unknown,  494. 
known  to  some,  unknown  to  othei-s,  41j5. 
dissolution  bj'  death,  496. 
dissolution  by  bankruptcy,  ^97. 

effect  upon  surviving  or  solvent  partners,  498. 
manner  of  giving,  499. 

communication  b}'  mail,  500. 

when  not  conclusive  unless  received,  501. 
to  agent  or  servant,  502. 
altering  signs,  etc.,  503. 
public  advertisement,  504. 
publication  insufficient  to  affect  those  having  prior  dealings, 

505. 
reading  papers  not  conclusive,  506. 
inference  drawn  from  publication,  507. 
■what  are  "  prior  dealings,"  508. 
discounting  notes,  509. 
honoring  successive  drafts,  510. 
renewal  of  accommodation  paper,  511. 
single  purchase,  .512. 
to  new  customers,  513. 
time  of  publication,  514. 
publication  in  newspaper,  515. 
when  published,  516. 
selection  of  newspaper,  517. 
manner  open  to  inquiiy,  518, 
English  and  American  doctiine,  519. 
liability  ol  retiring  i)artner  affected  \>y  subsequent  conduct,  520. 

estoppel,  521. 
example  of  new  customer  entitled  to  actual  notice,  522. 
knowledge  of  expiration  of  partnership,  523. 
notice  of  limited  partnei'ship,  524. 
special  partnership,  525. 
restrictions  and  limitations,  526. 

assumption  of  excess  of  authority  by  one  partner,  527. 

misapplication  of  funds,  528. 

effect  of  dissolution  upon  guarantors,  529. 

Onus  prubandi.,  530. 


INDEX.  629 

DIVORCE, 

and  alimony,  in  suits  for,  service  by  publication,  1083. 
DRAWER, 

of  bill,  notice  of  dishonor  should  be  given,  729-730. 
See  Bills  and  Notes. 
EASEMENT, 

possession  is  notice  to  purchasers  of  reservation  of,  300. 
EJECTMENT, 

pendency  of  action  of,  notice  to  purchasers,  343. 
ENGLISH  REGISTRY  LAWS, 

decisions  under,  as  to  the  effect  of  registration,  104-106,  llO-lll. 
EQUITABLE  INTEREST, 

effect  of  tiling  conveyance  of,  for  record,  254. 

notice  to  purchasei's  ol. 

See  PUKCHASERS. 

EQUITABLE  MORTGAGES, 

under  English  and  Irish  registry  acts,  105-109. 

ERRORS, 

in  record  of  instrument,  how  registry  affected  by,  147. 
in  description,  148-14(»,  159. 
after  filing  for  record,  149. 
to  whom  is  the  officer  responsible  for,  150. 
notice  unaffected  by,  152. 
partial  omission,  153. 
entire  omission,  154. 
early  American  autliorities,  155-156. 
in  amount  secured  by  mortgage,  158. 
fraudulent  concealment  by  officer,  160. 
immaterial,  or  cleri(;al,  will  not  affect  registry,  161. 
principle  g:)verning  question,  162 
failure  to  record  in  proper  time.  163. 
in  indexing  records,  104-173. 

See  Imjkx. 
or  omission  in  instrument  filed  for  record,  effect  of,  when  misleading, 
174. 
insufficient  description,  175. 

in  numbering  tracts,  176. 

in  description  of  chattels,  177. 

of  debt  due  on  mortgage,  178. 

when  conditions  insufficiently  (■xi)re8sed,  179. 

when  with  siiflicieiit  certainty,  lHO-185. 
in  sheriffs  return  of  judicial  saIc,  etlect  i)f,  1094. 
in  return  of  process,  cured  by  ameniinient,  1381. 
when  immaterial,  1369. 


630  INDEX. 

EVIDENCE, 

of  title,  possession  is, 

See  Possession. 
notice  to  produce  books  and  papers  to  be  used  in,  1257-1292. 

See  Books  and  Papers. 
secondary,  of  written  instrument,  when  admissible,  125^. 
parol,  in  aid  of  defective  return  of  process,  1383. 

EXCUSES, 

for  failure  of  uotice  of  dishonor  of  commercial  paper,  976-1028. 
of  a  general  nature,  enumerated,  976. 
inevitable  accident,  97K. 
prevalence  of  malionant  fever,  979. 
existence  of  war,  980. 
interdiction  of  commerce,  9yl. 
actual  hostilities,  982. 

the  late  war,  983. 
interruption  of  postal  communication,  984. 
war,  where  note  payable,  985. 

will  not  excuse  if  intercourse  legal,  986. 
loss  of  note  by  war  no  excuse,  987. 
entitled  to  notice  when  ol)struction  removed,  988-992. 
party  not  required  to  violate  law  of  his  domicil,  989. 
absconding  of  party  liable — due  diligence  required,  990-991. 

will  not  excuse  uotice  of  facts  excusing  demand,  991. 
of  a  special  character  enumerated,  977. 
death  of  holder,  903. 
sudden  sickness  and  death  of  agent,  994. 

sickness  must  be  sudden  and  severe,  995. 
treated  as  waivei',  996. 
bill  drawn  for  benetit  of  drawer,  997. 
note  for  accommodation  of  payee,  998. 
for  accommodation  of  drawee  or  acceptor,  999. 
not  excused  by  promise  of  drawee  to  provide  for  bill,  1000. 
no  funds  in  hands  of  drawee,  1001-1003. 
no  right  to  expect  payment,  1004. 

absence  of  funds  no  excuse  when  payment  expected,  1005. 
balance   in  hands   of  drawer  not  always   good  grounds  for 

expectation,  1006. 
no  reasonable  ex])ectatiou  of  payment,  1007. 
mere  existence  of  credit  insufhcient,  101)8. 
expectation  of  payment  must  continue  to  malnrity,  1009. 

need  not  be  exi)ected  from  drawee,  1010. 
promlhc  from  drawee,  1011. 
where  drawee  has  already  honored  drafts,  1012. 
running  accoiuit  between  i)arties,  1013. 


INDEX.  631 

EXCUSES,  Continued. 

suspecting  absence  of  funds  no  excuse,  1014. 
indebtedness  of  drawer  to  drawee,  no  excuse,  1015. 
no  expectation  of  funds  at  place  ofpaymtnt  no  excuse,  1016. 
absence  of  funds  no  excuse  for  failure  to  notify  indor.scr,  1017- 

1019. 
former  partnership  between  drawer  and  drawee  no  excuse 
1020. 

partner  drawing  upon  his  firm,  not  entitled  to  notice,1021. 
maker  and  indorser  partners,  and  consideration  received  by 
partnership,  no  excuse,  1022. 
fraud  by  indoiser  excuses  failure  of  notice  to  him,  1023. 
motives  for  indorsement  immaterial,  1024. 
adding  word  "  surety  "  will  not  excuse,  1U25. 
present  when  payment  refused,  no  excuse,  1026. 
attachment  of  funds  no  excuse,  1027. 
note  void  at  inception,  notice  unnecessary,  1028. 
EXCUSE  AND  WAIVER, 

of  demand  and  notice  to  guarantors,  426-127. 
of  notice  of  dishonor  of  commercial  paper. 
See  Excuse. 
See  W.MVER. 

EXECUTION  SALE, 

purchaser  at,  being  the  creditor,  held  not  purchaser  for  value,  228. 
notified  of  prior  conveyance,  by  registry  prior  to  sale,  229. 

interest  of  mortgagee  not  affected  by  bidding  at,  280. 

purchaser  at,  protected  by  good  faith  of  creditor,  282. 

registration  of  deed  prior  to,  gives  precedence  over  judgment  lien,  239. 

after  purchase  at,  notice  of  prior  unregistered  conveyance  too  late,  266. 

notice  of,  by  publication,  1080-1104. 

See  .TrDiciAi,  Sales. 
EXECUTOR, 

notice  to,  698. 
EXPRESS  NOTICE, 

definition  of— distinguished  from  notice  by  implication,  6-7. 

FACTOR, 

may  give  notice  of  stoppage  in  trdtmitu.  477. 

FILING, 

of  instrument  for  registry,  time  within  whirl)  to  take  place,  101. 

consequences  of  delay  in,  102. 

effect  of  error  in  reciording  subswiuent  to,  149. 
instruments  for  record,  notice  to  pnrciiasc^rs  from  the  time  of,  162, 

201. 

should  be  tiled  in  their  true  character,  18(i-191. 


632  INDEX. 

FILING,  Continued. 

should  be  in  proper  county,  193-195. 
efl'ect  of  withdrawing  from  files  after,  255. 

notice  of  motion,  date  of,  1196. 
FORECLOSURE, 

suits — service  by  publication — notice  should  describe  property,  1059. 
FORM, 

of  notice  of  dishonor  of  commercial  paper,  835. 
FRAUD,  , 

disregard  of  notice  amounting  to.  9,  89-90,  9:^. 

of  agent,  principal  not  to  be  benefited  by,  82. 

purchaser  guilty  of,  not  protected,  68. 

not  imputed  to  one  who  withholds    mortgage   from   record,   with 
knowledge  of  subsequent  purchaser,  253. 

practiced  by  agent,  257. 

GUARANTEE, 

notice  from,  when  necessary  to  fix  lial)ility  of  guarantor. 

See  Gharanty. 
GUARANTOR, 

may  give  notice  to  carrier,  of  stoppage  in  tiansitu,  479. 
what  necessary  to  fix  liability  of. 

See    GUAKANTY. 

GUARANTY, 

notice  of,  886-427. 
different  forms  of  collateral  liabilitj-,  886. 
division  of  subject,  387. 
conflicting  decisions  as  to  notice  of  acceptance,  388. 

earl}'  authorities,  889. 

guarantor  entitled  to  notice — absolute  guaranty,  390. 

proposal  to  guaranty,  891. 

letter  of  credit  held  to  lie  proposal,  892. 
reason  for  notice  of  proposed  guaranty,  893. 
absolute  guarant}"^ — notice  not  recjuh-ed,  894. 
distinction  between  difforent  kinds  of  guaranties,  395. 

uncertainty  of  demand,  396. 

general  indefinite  letters  of  civdit,  :'>97. 

definiteness  of  amount,  89.-<. 

guaranty  of  proposed  credit,  899. 

absolute  guaranty  of  uncertain  amount,  400. 
notice  of  acceptance  held  unnecessary,  401. 

continuing  absolute  guarantj-,  402. 
principles  regai'ded  as  settled,  403. 

weight  of  aiitliority,  404. 

rule  as  to  iudetinile  letters  of  credit,  405. 


INDEX.  633 

GUARANTY,  Continued. 

time  of  giving  notice  of  acceptance,  406. 
notice  of  action  on  faith  of  the  guaranty,  407. 
change  of  manner  of  reimbursement,  408. 
report  of  particular  transaction,  not  generally  required,  409. 
notice  of  state  of  accounts,  on  demand  of  guarantor,  410. 
notice  of  principal's  failure,  411. 
conflict  of  authority,  413. 
early  Massachusetts  cases,  413. 

demand  and  notice  held  necessary,  414. 
later  decisions,  contra  to  above,  415. 
Indiana  authorities,  416. 

negligence  of  guarantee,  417. 
rule  in  Connecticut. — absolute  guaranty,  418. 

uucertainly  of  amount,  iVJ. 
means  of  knowledge  within  reach  of  guarantor,  430. 
Pennsylvania  doctrine,  421 . 

guaranty  and  suretyships,  422. 
deductions  from  authorities,  428. 

obligation  unlimited  and  uncertain,  424. 

notice  required,  not  same  as  of  dishonor  of  bills  and  notes,  425. 

notice  excused — reasonable  time,  426. 

waiver  of  notice,  437. 

GUARDIAN, 

of  holder  of  bill  or  note,  may  give  notice  of  dishonor,  737, 

HEIR, 

purchaser  from,  without  notice  of  unregistered  deed   from  ancestors, 
217-323. 
protected,  the  same  as  though  he  purcbascd  from  ancestor  without 

notice,  317. 

reasons  assigned  for  the  rule,  218. 
held  not  to  be  protected,  because  title  never  descended,  21!). 
the  better  reason  in  favor  of  innocent  purchaser  from  heir,  330. 
review  of  authorities,  pro  and  con,  321. 
weight  of  authority,  and  governing  principle,  322. 

HOLDER, 

of  note  or  liill,  generally  the  proper  party  to  give  notice  of  dishonor, 

702. 

need  not  be  for  value,  716. 

may  hold  as  collateral  security,  721. 
adoption  by,  of  notice  from  stranger,  723. 
when  may  choose  between  places  of  sending  notice,  H!)4-8!)t5. 
misled  by  place  of  date,  936. 

HOURS, 

of  giving   notice  of  disbonor  of  n<;goti!il»!e  paper,  at  place  of  busi- 
ness, 788. 


634  INDEX. 

HOURS,  Continued. 

at  place  of  residence,  780-791. 
nine  o'clock  P.  M.,  held  not  too  late,  790. 

when   left  too  late  on  day  of  dishonor,  maj'^  serve  for  next  day, 
791. 
unreasonably  early,  for  sending  notice  of  dishonor  by  mail,  80fi. 
mail  closed  before  two  o'clock  A.  M.,  too  early,  807. 
five  o'clock  A.  M..  too  earlyfor  business, 
six  o'clock  the  hourofclosiuu-,  too  early,  810. 
ten  minutes  past  nine  A.  M.,  held  not  unreasonably  early,  811. 
might  be  reasonably  earlier  than  nine.  812. 
half-past  nine  held  too  early,  813. 
of  closing  mail   determines  whether  notice  should  be  sent  thereby, 

807,  814. 
of  mailing  notice  of  dishonor,  to  non-resident,  will  determine  whether 
in  time,  821. 
HUSBAND  AND  WIFE, 

relative  rights  and  liabilities  of,  affected  by  law  of  agencj',  671. 
wife  affected  with  notice  by  knowledge  of  husband,  679. 
confined  to  transactions  in  which  he  is  active,  680. 
IGNORANCE, 

voluntary,  imputed  to  one  neglecting  to  make  inquiry,  279. 
IMPLICATION, 

notice  by,  8-86. 

insufficient  to  attect  purchaser  of  real  estate,  345-252. 
sufficient  to  affect  purchasers  of  real  estate,  249-251. 
of  authority  of  agent  to  give  notice  of  dishonor,  720. 
INDEMNITY, 

taken  by  indorser,  not  always  a  waiver  of  notice,  943-953. 

INDEX, 

to  record  of  instrument,  eflect  of,  164. 
failure  to,  does  not  affect  record,  165. 
ettect  of  indexing  under  Iowa  statute,  167. 
sufficient  to  put  upon  inquiry,  168. 
held  part  of  the  record,  169. 
making  of,  an  official  act  of  whicli  grantor  has  no  control,  170. 
mortgagee  not  att'ected  by  officer's  failure  to,  171. 
held  no  part  of  the  record,  172-173. 
INDORSEMENT, 

by  partnership — notice  of  dishonor,  752. 
of  renewal  note  considered  as  waiving  notice,  953. 
See  Indorser. 
See  BiLi,s  a.nu  Notes. 


INDEX.  635 

INDORSEE, 

of  bill  or  note,  notice  of  dishonor  ghould  be  given,  729,  734-741. 
need  not  be  indorser  for  value,  785. 
may  be  from  any  subsequent  party,  786. 
case  of  partial  dishonor,  liability  js to  tanto,  737. 
over-due  negotiable  paper,  governed  by  same  rule,  738-739. 
when  reissued  by  indorser,  notice  of  subsequent  dishonor  unnec- 
essary,  740. 
paper  purchased  at  indorser's  request— unnecessary,  741. 
when  delay  in  giving  notice  chargeable  to,  925-1)28. 
waiver  of  notice  hy^  955. 

See  Waiver. 
when  failure  of  notice  to,  will,  and  will  not  be  excused,  1017-1028. 
See  Excuses. 

INFANT. 

notice  of  dishonor  of  negotiable  instrument  by,  727, 
notice  of  dishonor  of  negotiable  instrument  to,  773. 
service  upon,  of  notice  or  summons,  131G. 
sti'ict  conformity  to  law  required,  1158. 

INFERENCE, 

of  fact,  implied  notice  an,  8,  40. 

of  law,  constructive  notice  an,  8,  42. 

of  bad  faith  by  jury,  from  circumstances,  88. 

from  general  language  of  return,  1377. 
INFORMATION, 

direct,  is  express  noticie,  0-7. 

sufficient  lo  put  upon  inquiry,  37. 
different  sources  of,  28. 

allaying  suspicion,  when  may  be  relied  on,  35. 

from  doubtful  sources,  effect  of  reliance  upon,  36. 

vague  and  uncertain  to  be  disregarded,  258. 

INJUNCTION, 

application  for,  service  of  notice,  1825. 

INQUIRY, 

circumstances  suliicient^to  pui  purchaser  on,  10. 
facts  sufficient  to  excite,  18. 

knowledge  of  trust  sufficient  to  put  purchaser  upon,  21-22. 
inadequacy  of  price  sufficientlo  excite,  23-24. 
relationship  between  parlies  will  put  purchaser  on,  25. 
excited  by  notice  of  partriersliip  interest  in  property  purchased,  26. 
information  sufficient  to  excite,  27. 
when  fruitless,  purcliaser  will  be  protected,  34. 

facts  whi(!h  excite  held  inadmissible  against  purchaser  of  negotiable 
instruments,  86. 


636 


INDEX. 


INQUIRY,  Continued. 

excited  by  inspection  of  negotiable  paper,  will  affect  purchaser,  90. 

examination  of  records  insufficient  to  protect  purchaser,  270. 

possession  sufficient  to  put  purchaser  on,  276-277. 

failure  to  make — voluntary  ignorance,  379. 

excited  by  recitals  in  title  papers  should  lead  to  examination  of  pa- 
pers, 335. 

purchaser  put  upon,  as  to  assignment  of  choses  in  action,  488-439. 

for  residence  of  party  to  bill  or  note,  necessary  before  notice  dispensed 
with,  915-921. 

INSTRUMENTS, 

the  registration  of  which  will  operate  as  notice,  113-123. 
See  Registration  of  Instruments. 
INSURANCE, 

notice  of  assignment  of  policy  of,  444-446. 
effect  of  transfer  of  insured  property,  447-449. 
by  retiring  partner,  448. 

notice  and  assent  implied  from  receipt  of  premium,  449. 
assignment  of  demand  for  indemnity,  after  loss,  450. 
INTERCEPTION, 

of  g(jods  by  consignee,  ends  transit,  474. 
JOINT  PURCHASERS, 

do  not  always  sustain  towards  each  other  the  relation  of  principal 
and  agent,  684. 
JUDGMENT  CREDITORS, 

rights  of,  subordinate  to  those  of  vendor  of  go'ids  in  transitu,  475. 
JUDGMENTS, 

given  jyrecedence  over  prior  unregistered  deeds,  238. 

held  not  liens  upon  real  estate,  superior  to  prior  unregistered  con 

veyances,  240. 
obtained  by  service  of  process  by  publication,  only  bind  jiroperty 

1084. 
not  subject  to  collateral  attack,  1085. 

against  sureties  cannot  be  obtained  without  process,  1141. 
attacked  and  set  aside  for  failure  of  notice  of  trial,  1176-1179. 
assented  to  in  the  alternative  in  notice  of  appeal,  1214. 
JUDICIAL  PROCEEDINGS, 

parties  defendant  must  have  notice  of,  1138. 

JUDICIAL  SALES, 

Notice  oi\  by  publication,  1086-1104. 

statutory  requirement,  merely  directory,  1086. 
purchaser  with  notice,  1087. 
description  of  property,  1088. 
immaterial  omissions  in,  1089. 


INDEX.  C37 

JUDICIAL  SALES,  Continued. 

changing  name  of  paper.  1090. 
several  executions  in  one  advertisement,  1091. 
sale  may  be  adjourned,  1092. 

may  be  had  under  alios  execution,  1093. 
error  in  sherifi"'s  return,  1094. 

publication  in  paper,  when  posting  required,  1095. 
failure  to  give  notice  will  not  always  render  sale  void,  1096. 
strict  compliance  with  statute  required,  1097. 

sale  void  for  want  of  proper  notice,  1098. 
no  uniform  rule  as  to  publication  of  notice  of  sales,  1099. 
time  of  publication,  1100. 

six  weeks'  notice,  1101. 

once  a  week,  for  three  months,  1103. 

what  constitutes  publication,  1103. 
posting  in  public  places,  1104. 

JURISDICTION, 

necessary  to  be  obtained  by  process,  to  effect  purchasers  pendente 
lite,  with  notice,  354. 

holder  of  legal  title  must  be  impleaded.  355. 
should  be  stated  in  affidavit  or  declaration  for  order  of  publication, 

1033. 
detinition  of,  and  how  obtained  by  service  of  process,  1161. 
for  purpose  of  hearing  motion  for  new  trial,  lost  at  end  of  tlie  term, 

1202. 
how  obtained  by  stale  courts,  of  foreign  corporations,  1303. 
must  be  cause  of  action  arising  within  the  State,  1304. 
reasonableness  of  rule  requiring  foreign  corporations  to   accept 

service,  1305. 
not  obtained   by  federal  courts  by  service  on  col•poralion^   Ibreigu 
to  the  district,  1300-1307. 
how  obtained  of  foreign  corpoi'ations,  in  federal  courts,  1308, 
how  obtained  of  domestic  corporatioiif- — officers  served,  1309. 
service  upon  ticket  agent  of  railroad,  1310. 
upon  director  or  station  agent,  1311. 
how  obtained  in  action  against  municipal  corporation,  1312. 
upon  city  clerk  insuflicient,  1313. 

See  Sekvice. 
KNOWLEDGP; 

distinction  l)etween  and  notice,  3. 

imputed  to  one  who  has  means  of  knowing,  11. 

of  infirmities  of  negotiable  instrument  purchased,  a  question  of  fact, 

85. 
derived  from  recitals  in  muniments  of  title, 
yee  Trri.K  Papers. 


638  i:!iDEX. 

KNOWLEDGE,  Continued. 

of  facts  sufficient  to   excite  inquiry,  raise   inference  of  notice  of  as- 
signment, 433-439. 
of  dissolution  of  partnership,  derived  from  circumstances,  485. 
of  partnership,  geaerally  sufficient  to  entitle  one  to  notice  of  dissolu- 
tion, 491. 
of  trustee  before  creation  of  trust,  694. 
of  dishonor,  not  necessarj'  at  time  of  giving  notice,  723. 
previously  acquired,  of  place  of  residence  of  party  to  bill  or  note,  923. 
of  laches,  subsequent  promise  must  be    made  with,  to  amount  to 
waiver  of  notice,  972-9Tr>. 

See  Bills  and  Notes. 
See  WAr\^ER. 
will  not  excuse  failure  to  serve  original  process,  1146. 

LANDLORD  AND  TENANT, 

the  rights  and  liabilities  growing  out  of  the  relation  of,  affected  by 
notice,  o78-650. 

notice  to  quit — a  reciprocal  right,  578. 
division  of  subject,  579. 
statutory  provisions,  580. 
nature  of  tenancy  requiring  notice.  581. 
from  year  to  j'ear,  582. 
growmg  out  of  possession  under  contract,  583. 
occupancy  with  owner's  consent,  584. 
holding  over  term,  5-'5. 
lease  void  under  statute  of  frauds,  586. 
implied  agreement  sufficient,  587. 
when  payment  of  rent  not  essential,  583. 
possession  by  mortgagor  after  forfeiture,  589. 
general  tenancy  at  will,  590. 
termination  of  strict  tenancy  at  will,  591. 
mere  occupant  not  entitled  to  notice,  592. 
contract  of  purchase  bj'  trespasser  will  not  entitle  him  to  no- 
tice, 593. 
trespasser  negotiating  for  lease  not  entitled  to  notice,  594. 
bailiff  or  servant  of  owner  not  entitled  to  notice,  595. 
general  tenancy  at  will  not  created  bv  holding  over  term,  596. 
tenant  for  life  of  another  not  entitled  to  notice,  597. 
grantee  of  mortgagor  not  entitled  to  notice,  599. 
tenant  disputing  landlord's  title  not  entitled  to  notice,  598. 
tenancy  strictly  at  will  or  by  sutleraiice,  600. 
tenancy  by  the  (^uirtcr,  601. 
when  owner  of  premises  may  elect  as  to  nature  of  tenancy,  603. 

holding  over  under  agreement  for  new  lease,  603. 
proof  of  tenancy  from  year  to  year,  604. 


INDEX.  639 

LANDLORD  AND  TENANT,  Gontinved. 

burthens  atni  benefits  equally  divided,  605. 
increase  of  rale,  (506. 
time  of  notice,  607. 
regulated  by  statute,  608. 

must  expire  at  commencement  of  new  term,  609. 
when  tenancy  by  the  quarter,  610. 

tenants  from  month  to  month,  611. 
governed  by  taking  possession — principal  and  accessorial  sub- 
ject of  demise,  613. 
the  different  Icinds  of  uncertain  tenancies,  618 

circumstances  by  which  may  be  determined,  614. 
by  whom  notice  should,  and  may  be  given,  615. 
joint  lessees  or  lessors,  616. 
partners,  617. 
one  giving  notice  as  agent  of  co-tenant,  618. 

agent  must  have  authority  at  time  of  giving  notice,  619 
agency  must  extend  to  the  duty  undertaken,  620. 
when  authority  inferred,  631. 
by  corporation,  633. 
by  receiver,  633. 
when  should  be  by  tenant,  634. 
when  by  landlord,  625. 
to  whom  given,  6.^6. 
joint  tenants,  tenants  in  (;ommou,  partners,  637. 
to  corporation,  638. 
form  and  sufficiency,  629. 
address  of  written  notice,  (iHO. 
what  to  contain,  631. 
statement  of  cause,  633, 
time  to  be  mentioned  in  general  terms,  633. 
tenant  from  week  to  week,  634. 
must  not  demand  possession  forthwith,  635. 
undue  strictness  not  required.  636. 
de.scription,  637. 

substantial  accuracy  sufficient,  638-630. 
service,  640. 
may  be  waived,  ('41. 
voluntary  surrender  by  tenant,  643. 

bv  i)arol,  and  aoctiptance  l\y  landlord,  64:^. 
olfering  to  Ust,  nut  waiver  of  notice  by  landlord,  644. 
parol  surrender  must  go  inU)  imiucdiatc  (^ITect,  645. 
verbal  lic(!nse  to  surrender  tenancy  from  year  to  year,  648. 
defects  in  notice  may  be  waived,  647. 
waiver  ')f  rights  under  notice,  648. 


640  INDEX. 

LANDLORD  AND  TENANT,  Continued.. 

will  not  l)p  presumed  from  acceptance  of  rent  by  an  unauthor- 
ized person,  649. 
mere  permission  to  remain  after  notice,  no  waiver,  650. 
LEASE, 

assignment  of,  properly  recordable,  116. 
verbal,  termination  of  by  notice  to  quit. 

See  Landlord  A>rD  Tenant. 
LESSEE, 

possession  by,  changed  to  possession  as  owner,  effect  of  as  notice,  303. 
LETTER  CARRIERS, 

notice  of  dislionor  of  commercial  paper  served  by,  869-874. 
See  Bills  and  Notes. 
LETTER  OF  CREDIT, 

notice  of  acceptance  of,  and  of  failure  of  principal, 

See  Guarantor. 
LIABILITIES, 

notice  by  which  certain,  created,  ch.  III.  §§  378-480. 
See  Acceptance. 
"   Guaranty. 

"    ASSmNMENT. 

"  Carriers. 

"  Stoppage  in  Transitu. 
notice  by  which  certain,  extinguished  or  modified,  ch.  IV.  §§  481-650 
Sec  DisRoixTiON  OF  Partnership. 
"   Carriers. 
"  Arrival. 

"   Landlord  and  Tenant. 
LIEN, 

for  purchase  money  of  chattels,  undisclosed,  71. 
notice  of,  from  recitals  in  title  papers. 

See  Title  Papers. 
LIS  PENDENS, 

notice  to  purchasers  by,  'iV^l'ill. 
Lord  Bacon's  rule,  387. 
public  policy,  338. 

doctrine  of  constructive  notice  applied,  839. 
views  of  Judge  Storey,  340. 
of  Chancellor  Kent,  341. 
rule  of  equity  jurisprudence,  342. 

applied  to  action  of  ejectment,  343. 
tlie  doctrine  indispensable,  344. 


INDEX.  641 

LIS  PENDENS,  Continued. 

views  of  Lord  Hardwicke,  345. 

effect  of  revivor,  346. 

payment  of  consideration  no  protection  to  purchasers,  347. 

commencement  of  suit,  348. 

service  of  process,  349. 
harshness  of  the  rule,  350. 
property  to  be  identified,  351. 
alimony,  o52. 
creditor's  bill,  353. 
jurisdiction  necessary,  354. 

holder  of  legal  title  must  be  impleaded,  355. 
equitable  interests  between  co-defendants  unaflFected,  356. 
Buit  must  be  continuously  prosecuted,  357. 
effect  of  dismissal,  358. 
diligence  in  prosecution,  359. 
rule  not  extended  to  atTect  others  than  subsequent  purchasers,  360. 
prior  mortgagee  unaffected,  3G1. 
foreclosure  of  prior  mortgage,  363. 
antecedent  equity,  363-364. 
owner  of,  may  acquire  legal  title,  pendente  lite,  365. 
contingent  right  may  be  rendered  absolute,  pendente  lite,  366. 
waiver  of  rights  by  plaintiff,  after  judgment  or  decree,  367. 
purchase  must  be  from  party  to  the  suit,  368. 
generally  confined  to  purchaser  of  real  estate,  369. 
purchaser  of  securities  affected,  370-3 11. 
does  not  affect  purchasers  of  negotiable  instruments,  373. 
peculiar  kind  of  property,  373. 
statutory  provisions,  374. 
purchaser  not  affected  personally,  375. 
statute  of  limitations  does  not  run  during  suit,  376. 
purchaser  at  execution  sale,  377. 

LOST  BILL, 

negotiable,  notice  of  to  purchasers,  not  sufficient  by  advertisement,  81. 

MAIL, 

notice  of  dissolution  of  partnership  by,  500-501. 
notice  of  dishonor  of  commercial  paper  by,  807,  815-816,  869-929. 
See  Bills  and  Notes. 

MAKER, 

of  note,  when  may  give  notice  of  its  dishonor,  713. 

MANNER  AND  MODE, 

of  giving  notice  of  dishonor  of  negotiable  instrument,  828-929. 
See  Bills  \hu  Notes. 


41 


6i2  INDEX. 

MIRRI.VGE  SETTLE:\TENT, 

purchaser  of  real  estate  with  notice  of,  51. 

registry  of,  required  by  English  statute,  106. 
MARRIED  WOMAN, 

when  party  to  bill  or  note  may  give  notice  of  dishonor,  728. 
MESSENGER, 

notice  of  dishonor  of  commercial  paper  sent  by,  sufficient  if  in 
time,  889. 
MINOR. 

should  be  notifiod  of  dishonor  of  bill  or  note  to  which  he  is  a  party, 

773. 
may  give  notice  of  dishonor  of  bill  or  note  held  by  him,  737. 
service  of  .summons  in  suits  against,  1316. 
MISCELLANEOUS  PROCEEDINGS, 

of  which  notice  given  by  publication,  1122-1134 
general  remarks,  1122. 
contract  for  public  improvements,  1123. 
special  assessment*,  1124. 
inteulion  (o  order  improvements,  1125. 
opening  street,  1126. 
eminent  domain,  1127. 
sales  by  guardians  and  curators,  1128. 
executor's  sales,  1129. 
sold  for  paying  debts  of  decedent,  1130. 
executor's  notice,  how  addressed,  1131. 
meeting  to  divide  township,  1132. 
mortgagees'  sales,  1133. 
matters  elsewhere  treated,  1134. 
MORTGAGE, 

released  by  one  other  than  mortgagee,  should  put  purchaser  from 

mortgagor  on  inquiry,  20. 
of  chattels,  how  affected  by  registry  laws,  77. 
equitable,  under  British  registry  acts,  105-109. 
registered,  claim  under,  as  against  unregistered  will,  108. 
agreement  to  execute,  a  proper  subject  for  registration.  111. 
assignment  of,  is  recordable,  117. 

conditions  of,  should  be  expressed  to  operate  as  notice  when  regis. 
tered,  179,  272. 

when  with  sufficient  certainty,  181-182. 
securing  future  advances,  registration  of,  as  notice,  182. 
secet,  record  of,  will  not  operate  as  notice,  191. 
two  simultaneously  executed  and  delivered,  efiect  of  prior  registry  of 

one,  197. 
purchftser  with  knowledge  of  unrecorded,  253. 
assignee  of,  regarded  as  purchaser,  262. 


INDEX.  643 

MORTGAGE,  Continued. 

description  in,  of  debt  secured  by,  and  of  property  incumbered,  273. 

See  Registration  op  Instruments. 
notice  from  recitals  in. 

See  Title  Papers. 
MORTGAGEE, 

notprejudiced  by  officer's  failure  to  index  record  of  mortgage,  171. 
sales  by,  1133. 
MOTIONS, 

And  other  proceedings  in  court,  notice  of,  1182-1207. 
by  entry  in  book,  1183. 
when  should  be  given,  1184. 
presence  of  counsel  will  not  waive,  1185. 
parties  charged  with,  1186. 
motion  in  the  nature  of  summary  judicial  proceeding,  1187. 

to  set  aside  sheriffs  sale,  1188. 
filed  during  term  of  court,  1189. 
examples  under  different  statutes,  1190. 
motion  to  dismiss  appeal,  1191. 
sufficiency  of,  1193. 

substantial  accuracy,  1193. 
against  constable,  1194. 
designation  of  court,  1195. 
date  of  filing,  1190. 

circumstances  aflecting  sufficiency,  1197. 
should  generally  be  in  writing,  1198. 
service,  1199-1203. 
upon  party  or  his  attorney — generally  from  one  attorney  to  an- 
other, 1199. 
upon  the  party,  1200. 
time,  1201. 

motion  for  new  trial,  1202. 
waiver  by  appearance,  1203. 
reference,  1204. 
reinstatement  of  case,  1205. 
rule  to  sliow  cause,  1206. 
of  examination  of  accounts,  1207. 
NAME, 

error  in,  will  not  alfoct  notice  of  dishonor  from  proper  party,  718. 
NEGLIGENCE, 

for  purchaser  put  upon  inquiry,  not  to  in()uire,  17,  88. 

by  which  purchasers  of  negotiable  instruments  affected  with  noticc» 

82,  87. 
and  bad  faith  of  purcliaser  c^uestions  of  fact,  83. 


644:  INDEX. 

NEGLIGENCE,  Continued. 

notice  given  by  carrier  will  not  exempt  from  consequences  of,  558- 

561. 
in  failing  to  inquire,  amounts  to  voluntary  ignorance,  279. 

NEGOTIABLE  INSTRUMENT, 

purchaser  of,  before  maturity  only  affected  with  actual  notice  of  in- 
firmities, 80-94. 

lost  bill,  81. 

bolder  of,  only  affected  when  grossly  negligent  in  purchasing,  82. 

bad  faith  requisite  to  defeat  rights  of  purchaser  before  maturity,  83. 

purchaser  without  notice  protected,  84. 
knowledge  a  question  of  fact,  85. 

facts  which  excite  inquiry  held  inadmissible  against  purchasers  be- 
fore maturity,  8(5. 

circumstances  which  put  purchaser  on  his  guard,  87. 

bad  faith  an  inference  of  fact,  88  {aote  1). 

inquiry  excited  by  inspection  of  paper,  90. 

when  "  general  notice  "  sufficient,  91. 

suspicious  circumstances,  92. 

payment  belbre  and  after  notice,  93. 

patent  defects  affecting  purchasers,  94. 

unaffected  by  lispejidens,  372. 

without  indorsement,  notice  of  assignment  held  necessary,  442. 
notice  of  dishonor  <•/,  702-1028. 

by  whom  given,  702-728. 

to  lohomgicea,  729-775. 

tim'i  of  gioing,  776-827. 

m'i,nner  and  mode  of  giving,  828-929. 

waiver  and  excuse,  930-1028. 

See  Bills  and  Notes. 
NEWSPAPER, 

what  is,  1066. 

containing  advertisement  of  dissolution,  reading  will  not  charge  old 

customer  with  notice,  504-507. 
advertisement  in,  will  not  be  sufficient  notice   to  limit  carrier's  lia- 
bility, 546. 
publication  of  original  process  in,  1065-1067. 
effect  of  changing  name  of,  upon  published  notice  of  judicial  sale, 

1090. 

NON-JUDICIAL  INVOLUNTARY  SALES, 
Notice  of  hy  publication,  1105-1121, 
strict  compliance  with  statute  required,  1105. 
tax  sales,  1106. 

publication  an  official  act,  1107. 
when  State  printers  designated,  1108. 


INDEX.  645 

NON-JUDICIAL  INVOLUNTARY  SALES,  Continued. 
should  state  the  amount  due,  1109. 
should  give  name  of  tax  debtors,  1110. 
time  fixed  by  statute  to  be  closely  followed,  1111. 
sale  held  void  for  failure  of  notice,  after  fifty  years,  1113. 
construction  of  statute  as  to  time  of  publication,  1113. 

three  successive  publications  for  three  months,  1114. 

during  three  successive  weeks,  1115. 

should  commence  after  tax  becomes  due,  lllG. 
form  and  sufficiency,  1117. 

when  form  prescribed  by  statute,  1118. 
proof  of  publication,  1119. 

statutory  mode  of,  exclusive,  1120. 

required  certificate  must  be  coatained  in  statement,  1131. 

NON-RESIDENTS, 

Service  of  summons  upon,  1358-1359. 

NOTES. 

See  Bills  and  Notes. 
See  Negotiable  Instruments. 

NOTICE, 

Liferent  kinds  of,  Ch.  I,  §§  1-47. 

actual  notice,  1-36. 

constructive  notice,  37-47. 
to  purchasers,  Ch.  II,  §§  48-377. 

ofdijferent  kinds  of  property  or  securities,  48-94. 

registration  of  instruments,  95-373. 

notice  by  possession.  273-30f). 

notice  from  title  papers,  307-33G. 

lis  pendens,  337-377. 
by  which  certain  liahilities  are  created,  Ch.  Ill,  §§  378-180. 

of  acceptance  of  jyioposals,  378-385. 

of  guaranty,  386-437. 

of  assignment,  438-450. 

to  carriers  and  other  bailees,  451-480. 
by  which  liability  is  exiinguishei  or  modified,  Ch.  IV,  ^g  481-G50. 

dissolution  of  partnership,  481-130. 

limiting  the  liability  of  common  carriers  and  other  bailees,  531-577. 

landlord  and  tenant,  578-(;r)(). 
between  principal  and  agent,  Ch.  V,  gg  051-701. 

of  agency,  fiol-CTl. 

to  an  agent,  G73-()y5. 

by  an  agent,  G90-701. 
of  dishonor  of  commercial  pnprr,  C'h.  VI,  §§  702-1033. 
Sec  Di.siiONOK. 


646  INDEX. 

OCCUPANCY, 

by  tenant,  notice  of  landlord's  title,  284-285. 
by  church  society,  is  notice  to  purchasers,  289. 
See  Possession. 
OFFER, 

continuing  and  limited,  notice  of  acceptance  of,  378. 
by  auctioneer,  what  amounts  to  acceptance  of,  881. 
OFFICER, 

before  whom  acknowledgment  of  deeds  may  be  made,  130-136. 

See  Acknowledgment. 
by  whom  instrument  may  be  recorded,  144-146. 

by  officer  de  facto,  145-146. 
by  whom  publication  of  notice  to  be  ordered,  1052-1054. 
when  party  to  action,  by  whom  process  served,  1298. 
OMISSIONS, 

from  notice  of  dishonor,  imma,terial,  will  not  affect,  836-840. 
immaterial,  in  published  notice  of  judicial  sale,  1089. 
in  original  process,  1155. 
ORDER  OF  PUBLICATION, 

See  Process. 
See  Publication. 
ORIGINAL  PROCESS, 

See  Process. 
PAPERS, 

notice  to  produce  to  be  offered  in  evidence,  1257-1292. 

See  Books  and  Papers. 
in  the  hands  of  attorney,  he  may  be  required  to  testify  to  their  ex- 
istence, though  entrusted  to  him  in  confidence,  1272. 
PAROL, 

contract  to  convey,  purchaser  affected  with  notice  of,  52. 
PARTIES, 

afflicted  with  notice  by  pendency  of  suit,  355-356. 
to  notes  or  bills  may  give  notice  of  dishonor,  703-713. 
PARTITION, 

original  process  in  suits  for,  property  should  be  described,  1059. 
PARTNER, 

retiring,  must  give  notice  of  assignment  of  insurance  policy,  448. 
dormant,  notice  of  dissolution  unnecessary,  402. 

who  is,  within  meaning  of  the  rule,  493-495. 
not  entitled  to  notice  of  dishonor  of  bill  drawn  by  co-partner,  733. 
notice  to,  of  dishonor  of  partnership  paper,  751-752. 
how  served  to  bind  both,  878,  1314-1315. 
See  Bills  and  Notes. 


^ 


INDEX.  647 

PARTNERSHIP, 

effect  of  knowledge  of,  by  one  purchasing  from  one  of  the  partners,  26. 

Notice  of  dissolution  of,  481-530. 

See  Dissolution  of  Partnership. 
PATENT, 

to  real  estate,  notice  from  recitals  in,  311-312. 
PAYMENT, 

notice  prior  to,  will  bind  purchasers,  60,  93. 

effect  of,  when  made  on  day  of  dishonor  of  note  or  bill,  780. 

refusal  of,  at  maturitj'  will  justify  notice  of  dishonor,  783. 
failure  of  and  qualified  refusal,  784. 

PENNY  POST, 

as  a  means  of  serving  notice  of  dishonor  of  bills  and  notes,  772. 
See  Bills  and  Notes, 
PERSONAL  PROPERTY, 

how  purchasers  of,  may  be  notified  of  adverse  interests. 

See  Chattels. 
notice  of  title  to,  from  recitals  in  title  papers. 

See  Title  Papers. 
notice  of  title  to,  by  possession. 

See  Possession. 
PLEADING, 

division  of  subject,  1386. 
■when  necessary  to  aver  notice,  1387. 

action  on  guaranty,  1388. 
when  notice  unnecessary,  1389. 

facts  within  defendant's  knowledge,  1390. 
when  knowledge  lies  between  the  parties,  1391. 
when  want  of  notice  to  be  averred,  1393. 
manner  of  alleging  notice,  1393. 
must  aver  that  it  vva-s  given  to  i)r()per  party,  1301,  1396. 
when  substituted  by  statute,  should  show  strict  compliance,  1395. 
should  appear  to  be  given  in  due  time,  1396. 
waiver  and  excuse  to  be  alleged,  1396-13!)7. 
facts  pleaded  according  to  their  legal  effect,  1398. 
manner  of  averring  want  of  notice,  1399. 
admissions  in  plea  or  answer,  1400. 
consequences  of  defective  pleading,  1401. 
practice  under  the  code,  1403. 

PLEDGE, 

property  held  in,  will  be  subject  to  terms  of  contract  between  par- 
ties, 73. 
not  subject  to  secret  trusts  of  which  pledgee  had  no  notice,  68. 


648 


INDEX. 


POLICY  OP  INSURANCE, 

assignment  of,  notice  requisite,  444447. 
POSSESSION", 

Notice  by,  273-30G. 
general  doctrine,  273. 

modified  by  registry  laws,  274. 
evidence  of  actual  notice,  275. 
sufficient  to  put  inirchaser  on  inquiry,  276-277. 
eflect  of  knowledge  of  possession,  where  actual  notice  not  required, 

278. 
voluntary  ignorance,  279. 
character  of  occupancy,  280. 
by  tenant  under  lease,  281. 
of  interest  claimed  by  occupant,  282. 
of  interest  of  occupant's  creditors,  283. 
tenant's  occupauc}',  notice  of  landlord's  title,  284-286. 
no  evidence  of  title  in  stranger,  287. 

possession  must  be  actual,  notorious  and  continuous,  288. 
occupancy  by  church  society,  289. 
should  be  exclusive,  290. 
unequivocal,  291. 
when  doubtful  in  extent,  292-293. 

possession  and  claim  of  right  should  be  contemporaneous,  294-302. 
instance  where  possession  and  claim  not  required  to  be  concur^ 
rent,  295. 
effect  of  abandonment,  296. 

when  possession  referred  to  rt  cord  title,  297-298. 
claim  inconsistent  wiHi  record,  299. 
of  reservation  of  easement,  300. 

exception  to  rule  requiring  claim  and  record  to  be  consistent,  301. 
po.sse8sion  to  begin  with  unrecorded  title,  302-304. 

lessee's  occupancy,  changed  to  possession  as  owner,  303. 
creditors  aftected  with  notice  by,  305. 
chattels,  306. 

held  insuflicient  to  aliect  purchasers,  14. 
held  sufficient,  16,78. 
regarded  as  constructive,  44. 

of  deeds,  that  the  one  in  possession  has  an  interest  in  the  land,  46, 56. 
of  chattels,  not  conclusive  evidence  of  title,  (59. 
as  notice  to  purchasers  generally,  78. 
of  goods  by  consignee,  ends  transit,  466. 
POSTING, 

notices  by  carriers,  limiting  their  liability  as  insurers,  insufficient, 

538-539. 
notices  of  judicial  sales,  in  public  places,  1104. 


INDEX.  649 

POSTING,  Continued. 

as  a  substitute  for  personal  service. 

See  Service. 
POSTOFFICE, 

to  which  notice  of  dishonor  of  bill  or  note  should  be  directed,  883-909. 
See  Bills  and  Notes. 
PRACTICE  AND  PLEADING, 
Ch.  VIII,  %%  1135-1402. 
Original  process,  1135-11  Gl. 
Notice  of  trial,  1162-1181. 

Noticn  of  motions  and  other  proceedings,  1182-1207. 
Notice  of  appeals,  1208-1220. 
Notice  if  taking  d^ positions,  1221-1256. 
Notice  to  produce  books  and  papers,  1257-129?/. 
Service,  1293-1360. 
Return,  1361-1385. 
Pleading,  1386-1402. 

PRESUMPTIVE  NOTICE, 

distinction  between  and  constructive  notice,  40. 
when  dependent  upon  presumption  of  fact,— actual. 

See  Actual  Notice. 
when  dependent  upon  presumption  of  law — constructive. 
See  Constructive  Notice. 

PRICE, 

inadequacy  of,  sufficient  to  put  purchaser  on  inquiry,  23-24. 

PRINCIPAL  AND  AGENT, 

See  AoENCT. 
Sec  Agi-nt. 
PRINCIPAL  AND  GUARANTOR, 

See  Guarantor. 

PRIORITY, 

between,  deeds  as  affected  by  registry,  196-202,  256. 
simultaneous  mortgages,  197. 

as  between  original  parties,  priority  subject  to  agreement,  198. 
registration  will  not  divest  accrued  rights,  199. 
innocent  purchaser  not  charged  with  notice  of,  except  by  tlic  record, 

200. 
order  of  filing  goven  s,  201. 
deeds  recorded  in  reasonable  liuic  after  delivery,— sufHcient,  203. 

PROCESS, 

original,  publication  of,  1021M085. 

general  character  of  service  by  imblicalion,  1029. 


660  INDEX. 

PROCESS,  Continued. 

must  conform  to  statute,  1030,  1148. 
suits  in  which  generally  employed,  1031. 
affidavit,  or  declaration,  1033. 
must  aver  jurisdictional  facts.  1033. 

should  state  that  property  of  defendant  within  state,  1034. 
must  state  a  cause  of  action,  1035. 
ground  of  attachment,  1030. 
attachment  of  property,  1037. 
requisites  of  affidavit  in  New  York,  1038. 
example  of  sufficient  affidavit  in  California,  1039. 
averment  of  "  due  diligence  "  held  sufficient,  1040. 
difference  in  statutes,  1041. 
conclusion  of  law  not  to  be  stated,  1042. 
expression  of  opinion  not  sufficient,  1043. 

information  and  belief,  1044. 
sufficient  statement  of  absence  from  state,  1045. 
affidavit  attached  to  other  papers,  1046. 
when  sufficiency  of,  presumed,  1047. 
not  impeachable  iu  collateral  proceeding,  1048. 
averments  in  pleading,  same  as  in  affidavit,  1049. 
amendments  not  allowed  after  publication,  1050. 
order  of  publication  and  notice,  1051. 
who  to  make  order,  1052. 

must  be  by  officer  designated  by  law,  1058. 
effect  of  change  of  order  without  authority,  1054. 
contents  of  order,  1 055. 
must  contain  sufficient  recitals  to  inform  defendant,  1056. 
averment  of  attachment,  in  notice,  1057. 
nature  and  amount  of  plaintitfs  demand,  1058. 
foreclosure  and  partition — description,  1059. 
names  of  defendants,  lOGO. 
unnecessary  to  mention  statute,  lOGl. 
order  must  be  jiroperly  signed,  1002. 
should  state  the  retiu'n  day,  1063. 
publication,  10(54. 
in  newspaper,  10G5. 
what  is,  1066. 

must  be  published  in.  the  one  designated,  1067. 
substitute  for  publicat.on  iu,  1068. 
must  be  for  full  time,  1069. 
computation  of  time,  1070. 
three  calendar  months,  1071-. 
three  weeks  succes  ively  1073. 
last  insert' cm  four  weeks  prior  to  time,  1073. 
six  weeks'  publication,  1074. 


INDEX.  651 

PROCESS,  Continued. 

when  period  cannot  be  shortened,  1075. 
days,  weeks  or  months,  1076. 
certain  time  or  certain  number  of  times,  1077. 
ten  publications  in  ten  weeks,  1078. 
two  weeks  in  daily  paper,  1079. 
proof  of  publication,  1080. 
must  be  to  satisfaction  of  court,  1081. 
affidavit  not  conclusive,  1083. 
divorce  and  alimony,  10c3. 
judgment  binds  property  only,  1084. 
not  subject  to  collateral  attack,  1085. 
Original,  by  xnhicli  jiidiaial  procerdingn  inHituted,  1135-1161. 
general  nature  of  modern  summons,  1185. 
importance  of  due  service.  1136. 
when  personal  notice  required,  1137. 

rule  applies  to  all  judicial  or  quasi-judicial  proceedings,  1188. 
assessment  of  damages  to  property,  1139. 
decree  in  chancery,  summary  proceedings,  1140. 
judgment  against  sureties,  1141. 
divorce  and  alimony,  1142. 
in  actions  before  justices  of  the  peace,  1143. 
actions  in  rem,  1144. 

annulling  certiticate  of  purchase,  1145. 
knowledge  will  not  answer  as  a  substitute  for  notice,  1146. 
must  be  written  or  priuted,  1147. 
what  notice  or  summons  should  contain,  1148-1157. 
should  state  time  and  place,  1149. 
when  but  one  cause  of  action  stated,  1150. 
Scire  facias — citation  and  copy  of  petition  required,  1151. 
should  contain  names  of  defendants,  1153. 
omission  of,  held  immaterial,  1153. 
mere  irregularity  in  stating,  will  not  defeat,  1154. 
immaterial  variations  and  omissions,  1155. 
requirements  of  different  States  as  to  certainty,  1156. 
when  the  purpose  of  the  action  to  be  stated,  1157. 
infant  defendants,  strictness  re([uired  in  the  interest  of,  1158. 
when  returnable,  1159. 

substantial  and  technical    defects,  how  jurisdiction   affected   by, 
1160. 

jurisdiction  deliued,  1161. 
service  of, 

See  Service. 

PROMISE, 

subsequent  to  dishonor  of  bill  or  note,  considered  as  waiver  of  no- 
tice, 957-975. 


652  INDEX. 

PROMISE,  Continued. 

conditions  of  waiver,  957. 
made  without  knowledge,  958. 
express  or  implied  waiver,  959. 
implied,  960. 

promise  to  "  see  it  paid,"  961. 
recitals  in  contract  acknowledging  bill,  962. 
must  be  unequivocal,  9(i3. 

admissions  to  strangers  not  sutiicient,  964. 
when  regarded  as  evidence  of  notice,  966. 
either  waiver  or  admission  of  due  notice,  969. 

burthen  of  proof,  970. 
'prima  facie  evidence  of  diligence,  971. 
evidence  of  knowledge  of  laches,  973. 
onus  cast  upon  the  holder,  973. 
principles  governing  the  question,  974. 
PROOF, 

of  publication,  1080-1083. 

must  be  satisfactory  to  court,  1081 
affidavit  not  conclusive,  1083. 
PROPOSALS, 

notice  of  acceptance  of 

See  Acceptance. 

PUBLICATION, 

of  notice  of  dissolution,  when,  and  when  not,  effectual,  504-519. 
not  available  against  those  who  have  had  prior  dealings,  504. 
insufficient,  though  printed  near  advertisement  of  old  customer, 

505. 
reading  paper  containing  announcement,  not  conclusive,  506. 
inference  drawn  from  publication,  507. 
what  are  prior  dealings,  508. 
discounting  notes,  509. 
honoring  successive  drafts,  510. 
renewal  of  accommodation  paper,  511. 
single  purchase  may  be  sufficieot,  513. 
constructive  notice  to  those  who  have  had  no  prior  dealings,  513. 
no  fixed  rule  as  to  time  of  publication,  514. 
should  be  in  newspaper,  515. 
where  papers  should  be  published,  516. 
selection  of  paper,  517. 
manner  of,  open  to  inquiry,  518. 

English  and  American  doctrine— publication  not  indispensable, 
519. 
of  notice,  will  not  limit  carrier's  liability,  533. 
of  notices,  1040-1134. 


INDEX.  653 

PUBLICATION,  Cmtinued. 
See  Process. 
"  Judicial  Sales. 

"  Non-Judicial  Involuntary  Sales. 
*'    Miscellaneous  Proceedings. 
PUBLIC  POLICY, 

the  foundation  of  doctrine  of  lis  pendens,  338. 
PURCHASERS, 

Notice  to,  Cli.  II,  §§  48-377. 

when  actual,  13. 
to  use  diligence  when  put  upon  inquiry,  17. 
of  equitable  interest,  with  kaowledge  of  legal  title  in  another,  18. 
with  notice  of  Vendor's  lien,  19. 
from  mortgagor,  20. 

inadequacy  of  price  will  put  upon  inquiry,  23-24 
relationship  between  the  parties,  ground  for  inference  of  notice,  25. 
affected  with  notice  that  property  belongs  to  partnership,  26. 
put  upon  inquiry  by  information,  27. 
may  disregard  vague  statements,  29, 
protected  after  fruitless  inquiry,  34. 
pendente  lite  bound  by  notice  constructively,  45. 

See  Lis  Pendens. 
constructively  notified  by  recitals  in  title  papers,  46. 
Difference  in  eff'ect  of  notice  to,  of  different  kinds  of  property  or  securi- 
ties, 48-94. 

division  of  subject,  48. 

of  real  property,  by  what  kind  of  notice  affected,  49-C6. 
See  Real  Estate. 
without,  from  purchasers  with,  notice,  61. 
with,  from  purchaser  without,  notice,  62. 

when  original  mala  fide  purctiaser  not  protected,  63. 
with  notice  of  unregistered  conveyance,  04. 

See  Unregistered  Instruments. 

of  chattels,  notice  to,  67-78. 

See  Chattels. 
of  negotiable  securities,  how  affcfted  with  notice,  80-94. 

See  Neootiatjlk  Instruments. 
of  real  estate,  aflccted  with  notice  1)y  registry  of  prior  deed,  07. 

See  Registration  ok  Instruments. 
to  take  advantage  of  failure  to  record  deed,  must  be  for  value,  226. 
put   upon   inquiry    by  knowledge  of   possession  by  one   cluiiuing 
adversely  to  grantor. 

See  Possession. 


654  INDEX. 

PURCHASERS,  Continued. 

notified  by  recitals  in  title  papers. 

See  Title  Papers. 
of  bills  of  lading,  bonafiie,  entitled  to  protection,  473-473. 
at  judicial  sale,  with  notice,  10b7. 
QUIT, 

notice  to,  when  given  by  agent,  698-701. 
written  or  verbal,  699. 
etfect  of  subsequent  ratification,  700, 

unauthorized  when  given,  valid  only  from  ratification,  701. 
reciprocal  right  between  landlord  and  tenant. 
See  Landlord  and  Tenant. 
QUIT-CLAIM  DEED, 

registration  of,  is  constructive  notice  only  of  what  record  shows,  204. 
RAILROADS, 

when   their   liability  as   common  carriers  may  be  fixed  by  notice. 
431-480. 

See  Carriers  and  Other  Bailees. 
when  they  may  be  affected  with  notice  of  vendor's  lien  on   goods, 
457-480. 

See  Stoppage  in  Tr.vnsitu. 
notice  limiting  the  liability  of,  as  insurers  of  goods  carried,  531-560. 

See  Carriers. 
termination  of  responsibility  of,  by  notice  to  consignee,  503-577. 
See  Arrival. 
RATIFICATION, 

by  principal,  of  acts  of  agent,  6(37. 
with  notice,  binds  principal,  668. 
eftect  of  silent  acquiescence,  660. 
of  notice  to  agent, — when  validity  depends  upon,  691. 
of  act  of  agent  in  giving  notice  for  principal,  700. 
valid  only  from  time  of  principal's  approval,  701. 
REAL  ESTATE. 

purchasers  of,  affected  with  notice,  actual  or  constructive,  of  adverse 

claims,  49-66. 
when  subsequent  purchase,  in  bad  faith,  50. 
purchase  with  notice  of  prior  marriage  settlement,  51. 
parol  contract  to  convey,  53. 

vendor's  lien — vendee  required  to  perform  in  lieu  of  his  grantor,  53. 
an  adopted  son's  equity,  arising  out  of  contract  made  at  time  of 

adoption,  54. 
prior  and  subsequent  contracts  to  convey,  55. 


INDEX.  655 

REAL  ESTATE,  Continued. 

possession  of  title  deeds  as  notice  of  possessor's  rights,  56. 
purchaser,  with  knowledge  of  trust,  becomes  trustee,  57. 
mortgagee,  with  knowledge  of  trusts,  58. 
notice  to  trustee,  to  affect  cestui  que  trust,  59. 
notice  prior  to  payment,  sufficient,  60. 
purchaser  without,  from  purchaser  with,  notice,  61. 
purchaser  with,  from  purchaser  without  notice,  63. 
re-purchase  by  original  midn  fide  purchaser,  63. 
unregistered  conveyances  of,  64. 
how  subsequent  purchasers  may  be  affected  with  notice  of,  65-66. 
See  Unregistkked  Instruments. 
notice  of  prior  conveyances,  from  recitals  in  deeds. 
See  Title  Papers. 
RECITALS, 

in  deeds,  effect  of  as  notice  to  purchasers. 
See  Title  Papers. 
what  sufficient  in  published  notice  of  suit,  1055-1059. 
See  Process. 

RECORD, 

of  conveyances  by  grantor,  prior  to  his  acquisition  of  title,  214. 
will  not  affect  subsequent  purchaser,  who  takes  without  further 
notice,  215. 

contrary  doctrine  examined,  216. 
REFERENCE, 

notice  of,  1204. 

REGISTRATION  OF  INSTRUMENTS, 

provided  for  by  statute,  as  conilructive  notice  to  subsequent  purchas- 
ers, 95-272. 

object  of  American  registry  laws,  96. 
registration  notice  to  subsequent  purchasers,  97. 
must  be  properly  of  record,  98. 
pre  requisites  to  valid  registry,  99. 
subscribing  witnesses,  100. 
when  instrument  1o  be  filed,  101. 
consequence  of  delay  in  filing,  103. 
exceptional  legislation,  10;}. 
English  and  Irish  registry  acts,  104. 
equitaljlc  mortgage,  105. 
registry  of  marriage  seitloiaonl,  106. 
Irish  act,  107. 
registered  mortgage  and  unregistered  will,  108. 
registered  legal  mortgage  and  unregistered  ecpiitablc  mortgage, 
109. 


656  INDEX. 

REGISTRATION  OF  INSTRUMENTS,  Continued. 
memorandum  of  "  further  change,"  110. 
agreement  to  mortgage,  111. 
acknowledgment  of  execution,  113. 
what  instruments  should  be  recorded,  113. 
reservation  of  right  of  way,  114. 
deed  of  assignment,  115. 
assignment  of  lease,  116. 
assignment  of  mortgage,  117. 
consideration,  118. 
instruments  not  recordable,  119. 

assignment  for  benefit  of  creditors,  120. 
certificate  of  emancipation,  121. 
executory  contracts,  122-123. 
equirements  of  the  statute  must  be  complied  with,  124. 
necessity  for  acknowledgment,  125-136. 
See  Acknowledgment. 
attesting  witnesses,  137. 
when  two  required,  IMS. 
witnessed  by  one  insufficient,  139. 
defective  execution  held  immaterial,  140. 
record  inoperative  without  delivery,  141. 
delivery  after  recording,  142. 

effect  of,  143. 
must  be  recorded  by  proper  officer,  144. 
by  officer  de  facto,  145-146. 
effect  of  error  in  record,  147. 

in  description,  148. 
effect  of  filing,  and  subsequent  error  in  recording,  149. 
to  whom  is  the  officer  responsible  for  errors  ?  150. 

different  construction  of  the  statute,  151. 
the  notice  unaffected  by  errors  in  recording,  152. 
partial  omission,  153. 
entire  omission,  154. 
early  American  authorities,  155-156. 
destruction  of  the  records  does  not  affect  the  notice,  157. 
effect  of  error  in  amount  secured  by  mortgage,  158. 
error  in  description  of  property,  159. 
fraudulent  concealment  by  officer,  160. 
immaterial  errors,  161. 

principle  governing  errors  in  the  record,  162, 
failure  to  record  in  proper  time,  168. 
the  imlex,  164-173. 

See  Index. 
misleading  errors  in  original,  174. 


INDEX.  657 

REGISTRATION  OF  INSTRUMENTS,  Continued. 
insufficient  description,  175. 
errors  in  numbering,  176. 
description  of  chattels,  177. 

description  in  mortgage,  of  debt  due,  178,  273  (note  3). 
conditions  insufficiently  expressed,  179. 
what  degree  of  certainty  held  sufficient,  180-181. 
mortgage  securing  future  advances,  182. 
description  which  may  be  rendered  certain  by  inquiry,  suf- 
ficient, 183. 
errors  by  which  purchasers  not  misled,  held  immaterial,  184- 
185. 
instruments  should  be  filed  in  their  true  character  186. 
deed  with  defea-sance  should  be  filed  as  mortgage,  187. 
should  be  recorded  as  mortgage,  and  not  as  deed  of  con- 
veyance, 188. 
same  rule  applies  where  defeasance  is  by  parol,  189. 
sherift's  deed,  recorded  as  mortgage  will  not  operate  as  con- 
structive notice,  190. 
record  of  secret  mortgage,  191. 
must  be  filed  in  proper  county,  192. 
effect  of  filing  in  wrong  county,  193. 
deposit  of  chattel  mortgage  in  wrong  town,  194. 
change  of  county  subsequent  to  filing  will  not  affect  registiy, 
195. 
order  of  jjriority  Ijetween  deeds  as  aflected  by  registration,  196- 
202. 

See  Fhiority. 
subsequent  purchasers  alone  aflected  by  registration,  203. 
record  of  quit-claim  deed,  204. 
the  instrument  must  be  in  the  chain  of  title,  205-213. 

See  (Jhain  of  Title. 
instruments  filed  for  record  prior  to  acquisition  of  title,  214-216. 

See  llKooKO. 
purchaser  from  heirs  without  notice  of  unrecorded  deed  from 
ancestor,  317-222. 

See  IIkirb. 
record  of  conveyances  between  strangers,  void  as  notice,  223. 
of  instnimcnts  aflecting  chattels,  follows  property.  224. 
time  given  for  registration  of  deeds,  225. 

advantage   taken   of  fail\Mc   to  register  only  by  piiicliaser  for 
value,  22(i. 

assign(-(;  for  benefit'of  creditors,  227. 
creditor  purciiasing  at  execution  sale,  228. 
42 


658  INDKX. 

REGISTRATION  OF  INSTRUMENTS,  Continued. 
notified  by  registry'  prior  to  sale,  229. 

interest  of  mortgagee  not  affected  by  bidding  at  execution 
sale,  280. 
actual  notice  of  uni'egistered  deeds,  331-253. 
See  Unuegisteked  Instruments. 
unregistered  deeds  and  judgments. 

See  Judgments. 
instruments  aflecting  an  equitable  interest,  254. 
effect  of  withdrawing  from  files  before  recording,  255. 
RELATIONSHIP, 

between  parties  to  contract,  sufficient  to  put  purchaser  on  inquiry,  25. 
RESIDENCE, 

respective  places  of,  of  parties  to  bills  and  notes,  as  it  affects  the 
manner  of  giving  u(jtic('  of  dishonor,  843-929. 
See  J3ILLS  and  Notes. 
in  one  place,  and  place  of  business  in  another,  853. 
what  is  place  of,  854. 

need  not  be  domicile,  855. 
having  notice  of  dishonor  at,  856. 
notice  may  be  serxed  at,  or  at  place  of  business,  863. 

RETURN, 

the,  by  which  proof  of  service  is  made,  l:)6l-1385. 
nature  and  purpose  of,  form  and  sufficiency,  1362. 

when  name  of  officer  not  used,  1363. 

served  without  Staff",  1364 

should  show  comi>liauce  with  statute,  1365. 

to  the  proper  term,  1306. 

contents  of,  ]3(>7-i:]r.8 
immaterial  errors,  1369. 
defects  cured  by  recital  in  judgment,  1370. 
judgment  by  default  on  insufficient,  void,  1371-1373. 
contradicted  by  the  record,  1373. 
examples  of  defective^  1374. 
what  deemeii  sufficienl,  1375. 
of  servic-e  cm  corporation,  1376. 
inference  from  general  language  of,  1377. 
cannot  be  contradicted,  1378. 

exception  to  above,  13 i 9. 

presum])tions  in  favoi' of  retiirii,  1380. 
may  be  amended,  13,SI. 
aided  by  presiiniptioii,  1382. 
aided  bv  j)arol  c\  ideiicf,  1383. 
aided  by  ronleiils  of  bill,  1384. 


INDKX.^  659 

RETURN,  Gmdinued. 

conflicting  views  as  to  impeaching,  1385. 
RIGHT  OF  WAY, 

agreement  reserving  should  be  recorded,  114. 
SALES, 

conditional,  of  personal  property,  73-75. 

See  Conditional  Sales. 
judicial. 

See  Judicial  Sales. 
non-judicial  involuntary. 

See  Non-Judicial,  Involuntary  Sales. 
by  guardians  and  curators,  notice  by  publication,  1128. 
by  executors  or  administrators,  1129-1130. 

SECRET  INSTRUCTIONS, 

to  broker  will  not  affect  purchaser  in  good  faith,  70. 

SERVANT, 

notice  to,  dissolution  of  partnership,  503. 

occupying  premises  of  master,  not  entitled  to  notice  to  quit,  595. 
SERVICE, 

of  differt'ut  kinds  of  notices,  129S-1360. 
division  of  subject,  1294. 
by  whom  served,  1295-1298, 
not  by  party  in  interest,  1396. 
by  unofficial  person,  1297. 

whfn  the  officer  whose  duty  to  serve  is  a  party,  1298. 
notice  of  motions,  etc.,  1299, 
to  take  depositions,  1243,  1300. 
upon  whom  served — depositions,  1301. 
original  process,  on  agent,  1302. 
upon  foreign  corporations,  1303. 
statute  for  l)enetit  of  residents,  1304. 
reasonableness  of  rule,  1305. 
federal  judiciary  act  in  relation  to,  130(5. 
United  States  circuit  courts  have  limited  jurisdiction, 

1307. 
how  jurisdiction  olilniiicil  in  rcdenil  courts,  1308.  ^ 

how  corporations  served,  13it;t, 
upon  ticket  agent,  1310. 

where  statute,  directory  and  permissive,  1311. 
on  municipal  (•(;ri)orations,  1312. 
on  city  clerk,  insufficient,  1313. 
upon  partners,  1314. 
principal  defendant,  1315. 


660  INDKX. 

SERVICE,  Continued. 

upon  minors,  1316. 
upon  convicts,  1317. 
upon  party  by  wrong;  name,  1318. 

variance  between  name  in  process  and  other  papers,  1319. 
several  defendants  in  different  counties,  1330. 
upon  attorney,  1321. 

in  suit  before  justice  of  peace,  1322. 

should  not  be  after  his  connection  with  case  has  ceased,  1323. 
"  due  "  notice,  1324. 
application  for  injunction,  1325. 
construction  of  "  reasonable  notice,"  1326. 
time  fixed  by  statute,  1327. 
admissions,  1328. 
notice  of  motion  for  new  trial,  1329. 

time  computed  from  date  of  service,  1330. 
how  computed,  1331. 
summons  must  be  for  full  time,  1332. 
manner  and  mode  of,  1334. 
personal,  133-j. 

leaving  at  place  of  abode  not  sufficient,  1336. 
personal  upon  attorney,  1337. 
strict  requirements  as  to  summons,  lo38. 
different  modes  of  personal  service,  1339. 

by  reading  original,  or  delivering  writing,  1340. 
written,  must  be  by  deliver}-,  1341. 
rule  deduced  from  foregoing,  1342. 
at  place  of  abode,  1343-1344,  1347-1350. 
leaving  at  residence  or  place  of  business,  good  only  when  pre- 
scribed by  statute,  1345. 
in  what  cases  officer  may  elect,  1346. 
leaving  at  place  of  residence,  134*^. 

with  member  of  family  to  which  party'  belongs,  1348. 
must  be  at  present  place  of  abode,  1349. 
necessity  for  strict  construction,  1350. 
actions  against  propertj-,  bj^  posting,  etc.,  1351. 
personal  in  foreign  state,  1352. 
*  proof  of,  1353. 

effect  of  acknowledgment  or  waiver,  1354. 
by  mail,  1355. 

chancery  proceedings  in  U.  S.  courls,  1356. 
on  aboard  foreign  vessel,  1357. 
non-resident,  temporarily  within  jurisdiction,  1338. 
Sunday  or  legal  holiday,  1350. 
reference  to  other  chapters,  1360. 


INUBX.  661 

SERVICE,  Continued. 

of  notice  to  quit,  640. 

may  be  waived,  641. 
of  notice  of  dishonoi-  of  commercial  paper,  843-939. 

See  Bills  and  Notes. 
of  notice  of  trial,  1170-1172. 
of  notice  of  appeal,  upon  a  torney,  1203. 

personal  not  always  required,  1217. 
of  notice  to  take  depositions,  1243-1248,  1251, 
of  notice  to  produce  books  and  papers  at  the  trial,  1287-1292. 
personal,  not  indispensable,  1292. 
SPECIAL  ASSESS:\[ENTy, 

notice  of,  by  publication,  1124. 
STATE, 

name  of,  should  he  ia  address  of  notice  by  mail,  927. 
STOCKS, 

notice  of  intirmities  of  titlt;  to,  from  recital  in  will,  333. 
STOPPAGE  IN  TRANSITU, 

by  notice  to  carrier,  4.i7-480. 
object  of,  to  arrect  consiunee  through  carrier,  457. 
inquiry  contined  to  atlect  upon  carriers,  458. 
time  of  giving  notice,  45!*. 

during  transit — when  transit  Ijegins  and  ends,  460. 
before  arrival  and  demand  of  consignee,  461. 

arrival  and  demand  to  be  concurrent  facts,  462. 
effect  of  notice,  to  give  vendor  right  of  possession,  463. 
end  of  transitus  by  delivery,  464. 

fact  of  delivery  determined  by  intent,  465. 
effect  of  possession  by  consignee,  466. 

views  of  Cliancellor  Kent,  4ii8. 
storage  in  governnumt  warehouse,  -169. 
notice  to  employe  of  carrier,  470. 
responsibility  of  carrier,  471. 
eflFect  of  assigning  l)ill  of  lading,  472. 
must  be  to  bona  fide  i)urchaser,  473. 
end  of  transit  by  inlercei)ti()n,  474. 

vendor's  riglit,  takes  precedence  of  judgment  lien,  475. 
by  whom  notice  may  be  given,  476. 
by  factor,  477. 

by  party  to  contract  respecting  goods,  478. 
by  owner's  guarantor,  479. 
by  agent,  480. 
STRANGERS, 

to  the  title,  record  ol'  conveyances  between,  will   not  atlect  purchas- 
ers, 223. 


662  INDEX. 

STREETS, 

notice  of  opening,  1126. 
SUIT, 

when  commenced  so  aa  to  operate  as  Us  pendens,  348-349. 

must  be  continuously  prosecuted,  357-359. 
notice  of  commencement  of 

See  Process. 
SUMMONS, 

.:  See  Process. 

SUNDAY, 

or  legal  holiday,  service  of  notice  on,  1359. 

party  to  bill  or  note  not  bound,  notice  given  on,  818-820. 

SURETIES, 

entitled  to  notice  of  proceedings  to  obtain  judgment  against  them, 
1141. 

SURRENDER, 

of  property  held  under  tenancy  from  year  to  year,  642. 
by  parole  and  acceptance,  ettect  of,  64.3. 

TAX  SALES, 

notice  of  by  publication,  11(J6-1121. 

See  Non-Judicial  Involuntary  Sales. 

TENANCY, 

nature  of,  requiring  notice  to  quit,  581-591. 

which  does  not  require  notice  to  quit,  593-601. 
from  year  to  year,  proof  of,  604. 
by  the  quarter,  610. 
from  month  to  mtinth,  611. 
different  kinds  of,  uncertain,  613. 
from  week  to  week,  614. 

See  Landlord  and  Tenaitt. 

'tenant, 

notice  to  quit,  to  and  by,  .'")78-650. 

See  Landlord  and  Tenant. 

TERM, 

of  court  to  be  designated  in  notice  of  trial,  1168-1169. 
to  which  process  returnable. 

See  Process. 

See  Return. 

TIME, 

of  recording  instruments,  to  be  operative  as  notice,  196-202. 
given  for  registration  of  deeds,  202. 

within  which  notice  ol  unrecorded  deed  given,  U)  atfect  purchaser 
of  real  estate,  263. 


INDEX.  663 

TIME,   Continued. 

to  attaching  creditor.  264. 
when  too  late,  265. 
after  purchase  at  execution  sale,  266. 
in  time  if  before  legal  title  conveyed,  267. 
not  necessarily  within  limits  prescribed  by  statute^  268. 
alter  death  of  grantor,  too  late  as  against  creditors,  269. 
of  giving  notice  of  acceptance  of  guaranty,  406. 
of  giving  notice  to  quit,  607. 
regulated  by  statute,  608. 

expiration  of,  must  be  at  commencement  of  new  term,  609. 
tenancy  by  the  quarter,  610. 
from  month  to  month,  611. 
principal  and  accessorial  subject  of  demise,  612. 
of  acquiring  knowledge  by  agent,  to  affect  principal,  687-690. 
For  giving  notice, 
of  dishonor  of  commercial  paper,  776-827. 

See  Bills  and  Notes. 
reasonable  time  required,  794. 

no  exception  to  rule  requiring,  827. 
of  publication  of  original  process,  1069-1079. 
of  judicial  sales,  1100-1102. 
of  non-judicial  sales,  1111-1116. 
and  place  to  be  stated  in  original  process.  1149. 
Of  notice  of  trial,  1178-1181. 
Of  notice  of  motions  and  ot  her  proceedings,  1201. 
Of  notice  of  appeal,  1215-1216. 

of  taking  depositions,  should  be  mentioned  in  notice,  1230. 
Of  notice  to  take  depositions,  12.''>:{-1242. 

See  DEPosiTroNS. 
Of  notice  to  produce  hooks  and,  fa/pers,  1286-1288. 
Of  service, 

See  Skrvicb. 

TITLE  PAPERS, 

Notice  from  recitals  in,  ;j07-;i.'J6. 
general  statement  of  doctrine,  807. 
equivalent  to  actual  notice,  15,  308. 
treated  as  constructive  notice,  40,  300. 
modification  of  the  rule,  310. 

recitals  in  original  patent,  311-312. 

Bufficient  if  recitals  lead  to  knowledge,  313. 

must  be  in  same  transaction,  314. 

should  be  in  same  chain  of  titUj,  315. 

recitals  reasonably  certain,  31(!-317. 


664  INDEX. 

TITLE  PAPERS,  Continued. 

example  of  general  recital,  318. 

uncertainty  of  description,  319. 

striking  peculiarities  of  recitals,  330. 

in  will,  321. 
limitations  upf)n  effect  of  recitals,  323. 
recital  of  a  trust,  323. 

may  be  from  recitals  in  variety  of  instruments — will,  334. 
in  mortgages,  325. 
in  books  of  record,  326. 
in  conveyance  by  statute,  -327. 
in  deed — facts  which  may  be  thus  brought  home  to  purchaser, 

328. 
in  contract  to  cimvey,  329. 
in  deed — of  vendor's  lien,  330. 
who  affected,  331. 
different  kinds  of  property,  332. 
stocks — transferred  by  executor,  333 
personal  property,  334. 
inquiry  excited  by,  should  extend  to  examination  of  papers,  335. 
deed  of  real  estate  containing  bill  of  chattels,  336. 
TORTS, 

notice  of,  to  agents  and  servants,  695. 
TRANSITU, 

stoppage  in,  457-480. 

See  Stoppagk  in  Transitu. 
TRIAL, 

JVo^/ce  o/,  1162-1181. 
required  by  statute,  1163. 
example  from  New  York  Code,  1163. 
English  rule,  1164. 
should  not  be  vague  or  misleading,  1165. 
should  specify  the  suit,  1166. 
may  be  noticed  fur  trial  hy  either  party,  1167. 
sufficiently  explicit  as  to  time,  1168. 
party  notified  may  safelj^  rely  on  time  designated,  1169. 
served  before  issue  joined,  1170. 
does  not  depend  upon  discretion  of  court,  1171. 
service  upon  i)arly  or  attorney,  1172. 
effect  of  continuance,  1173. 
effect  of  amendment  after  notice,  1174. 
waived,  1175. 

Judgment  attacked  for  want  of,  1176. 
must  be  for  substantial  defects,  1177. 

statementof  wrong  day  of  cmmenccment  of  term  not  fatal,  1178. 


INDEX.  665 

TRIAL,  Gontinued. 

failure  to  place  on  calendar— j  udgment  set  aaide,  1179. 
Wisconsin  Code,  1180. 
time  under  English  rule,  1181. 
TROVEK, 

actions  of,  when  notice  to  produce  books  and  papers  unnecea8ary,1263. 
TRUSTEE, 

insolvency  of,  should  put  purchaser  from,  on  inquiry,  22. 
purchaser  from,  decreed  to  perform,  57-59. 
when  member  of  partnership,  notice  to,  will  aftect  partners,  59. 
TRUSTS, 

purchaser  with  implied  notice  of,  21-23. 

sufficient  to  atl'ect  his  conscience,  takes  place  of  original  trustee,  57-59. 
notice  of,  from  recitals  in  title  papers. 

See  Title  Papers. 
UNREGISTERED  INSTRUMENTS, 

can  only  be  taken  advantage  of  by  purchaser  for  value,  236-327. 
good  against  subseiiuent  purchaser  at  executicm  sale,  228-229. 
actual  notice  of,  will  bind  subsequent  purchaser,  231. 
purchaser  at  execution  sale  protected  against,  by  good  faith  of  exe- 
cution creditor,  232. 
equitable  interference  in  fiivor  of  holder  of,  233. 
recorded,  after  adverse  levy,  not  preferred  to  purchaser  at  execution 

sale,  234. 
good  against  creditors  with  notice,  235. 

notice  of,  to  be  effectual,  must  be  subsequent  to  delivery,  236. 
judgment  liens  preferred  to,  238. 

take  precedence  if  registered  prior  to  executitm  sale,  239. 
title  under,  superior  to  Judgments  subse([Uently  rendered,  240. 
purchaser  without  notice  of,  may  give  good  title  to  subsequent  pur- 
chaser with  notice,  241-242. 

but  not  to  fraudulent  grantor,  en- original  purchaser  with  notice,  243. 
conflicting  decisions,  as  to  what  is  sufficient  notice  of,  244. 
express  notice  required,  345. 
either  actual  or  constructive  held  sutlicient,  24(j. 
See  PossKssioN. 
See  Title  P.mveks. 
See  Lis  Pendens. 
cases  holding  notice  of,  ineflVctual  against  tlie  record,  248. 
cases  holding  implied  notice  sufficient,  24!)-251. 
should  amount  to  imputation  of  Iruud,  252. 

withholding  from  record  no  fraud  upon  those  having  knowledge, 
253 
effect  of  withdrawing  from  tiles  hetore  recorded,  355. 


GQ6  INDEX. 

UNREGISTERED  INSTRUMENTS,  Continued. 
recorded  prior  to  subsequent  purchase,  256. 

vague  information  of,  insufficient  to  aifect  subsequent  purchaser,  258. 
VAGUE  STATEMENTS. 

of  facts  aftecting  title  to  real  estate,  disregarded  by  purchaser,  29, 258. 
VENDOR'S  LEIN, 

purchaser  with  notice  of,  19. 

decreed  to  perform  in  lieu  of  original  contracting  party,  53. 
notice  of,  to  purchasers,  from  recitals  in  title  papers,  329-330. 
VOID  NOTE, 

notice  of  dishonor  of,  unnecessary,  1028. 
WAIVER, 

of  lien  on  property,  by  plaintifl",  as  against  purchaser  pendente  lite, 
367. 

of  notice  of  dishonor  of  commercial  paper,  930-975. 
general  character  of,  930-931. 

may  be  antecedent  or  subsequent  to  dishonor,  933. 
antecedent  waiver  in  writing — examples,  933-938. 
may  be  verbal.  939. 
established  by  circumstances,  940-956. 
by  subsequent  promise  to  pay,  957-975. 
of  notice  of  trial,  1175. 

of  notice  of  motions,  and  other  court  proceedings  by  appearance,  1203. 
of  notice  of  appeals.  1220. 
of  notice  to  take  depositions,  1253-1255. 

of  notice  to  produce  books  and  papers,  to  be  offered  in  evidence,  1284. 
of  defective  service  of  process  by  general,  but  not  by  special  appear- 
ance, 1358-1359. 
of  notice  to  quit,  041-644. 

offering  to  let  will  not  amount  to,  644. 
of  rights  under  notice  to  quit,  648. 
will  not  be  presumed  from  acceptance  of  rent  by  unauthorized 
person,  619. 

nor  from  mere  permi.ssiou  to  remain  after  expiration  <>(  original 
term,  650. 
WAIVER  AND  EXCUSE, 

of  demand  and  notice  to  guarantors,  426-427. 
of  notice  of  arrival  of  goods  by  common  carrier,  576. 
of  notice,  should  be  avi'ired  in  pleading,  1397. 
of  notice  of  dif  honor  of  commercial  paper,  930-1028. 
See  Bills  and  Notes. 
See  Waiver. 
See  Excuse. 


INDEX.  667 

WARD, 

when  a  party  to  bill  or  note  may  give  notice  of  dishonor,  727, 

when  notice  may  be  given  to,  773. 
WIFE, 

affected  by  husband's  knowledge,  when  acting  as  her  agent,  679. 

confined  to  transactions  in  which  he  acts  for  her,  680. 
WILLS, 

registration  of,  operating  as  notice  to  purchasers,  108. 

notice  from  recitals  in,  334,  333. 
WITHDRAWAL, 

of  offer,  notice  of,  before  acceptance  will  be  effectual,  385. 
WITNESSES, 

subscribing  to  deed,  necessary  to  entitle  to  registry,  100, 137-139. 

need  not  be  all  named  in  notice  to  take  depositions,  1227, 
WRITING, 

contents  of,  conclusively  presumed  to  be  known  to  party  executing 
same,  43. 

notice  by  agent  may  be  in,  or  verbal,  699. 

original  process  required  to  be  in,  1147. 

notice  of  appeal  to  be  in,  1209. 

notice  of  taking  depositions,  generally  in,  1222. 

notice  of  dishonor  of  commercial  paper,  generally  in,  831-832. 
when  to  distant  parties,  should  always  be,  833. 


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